Missouri Revised Statutes

Chapter 40
Military Justice

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Definitions--law applicable to all state military forces not infederal service.

40.005. 1. As used in sections 40.005 to 40.490, unless the context clearly otherwise requires:

(1) "Accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any person who has an interest other than an official interest in the prosecution of the accused;

(2) "Active state duty" means:

(a) Inactive duty training and active duty for training to include all duty and training performed under Title 32, United States Code Sections 316, 502, 503, 504, and 505, Title 37 United States Code Section 206, 301, 309, 402, or 1002, to wit: unit training assemblies and split unit training assemblies; equivalent training in lieu of unit training assemblies; aerial flight duty; training or duty such as additional training assemblies, additional training or other duty without pay; full-time training or other full-time duty; detail of rifle instructors for civilians; participation in training and encampments, maneuvers, outdoor target practice, or other exercises, and other duty or training performed under Title 32 U.S.C. 502(f), either with or without pay; participation in encampments, maneuvers, outdoor target practice, or other exercises for field or coast-defense instruction, independently of, or in connection with, the Army; attendance at active component schools, conducting or attending National Guard schools, or participation in small arms competition; and attendance at service schools and routine practical instruction while attached to an active component; including travel to and from such duties; and

(b) When ordered to active state duty by the governor under authority vested in the governor by law, including travel to and from such duty;

(3) "Commanding officer" includes only commissioned officers;

(4) "Convening authority" includes, in addition to the person who convened the court, a commissioned officer commanding for the time being, or a successor in command;

(5) "Costs" include service fees, witness fees, mileage, depositions, and costs of confinement as those costs are enumerated in section 40.480 and as provided by law;

(6) "Duty status" includes active state duty and any other type of state military duty, including travel to and from such duty;

(7) "Enlisted member" means any person serving in an enlisted grade;

(8) "Grade" means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation;

(9) "Hostile force" means enemy, rioters, looters, dissidents, and others opposing or interfering with law and order;

(10) "Military" refers to any or all of the Armed Forces;

(11) "Military court" means a court-martial or a court of inquiry;

(12) "Military judge" means an official of a general or special court-martial detailed in accordance with section 40.095;

(13) "Officer" means commissioned or warrant officer;

(14) "Rank" means the order of precedence among members of the state military forces;

(15) "State judge advocate" means the commissioned officer responsible for supervising the administration of the military justice in the state military forces, who shall be the military staff judge advocate to the governor;

(16) "State military forces" means the National Guard of this state, as defined in Sections 101(3) and 109 of Title 32, United States Code, and any other military force organized under the laws of this state;

(17) "Superior commissioned officer" means a commissioned officer superior in rank or command.

2. Sections 40.005 to 40.490 apply to all members of the state military forces who are not in federal service.

(L. 1984 H.B. 1035 §§ 1, 2, A.L. 1986 H.B. 1505)

Discharge obtained by fraud--desertion--separation from servicewhile proceedings are pending, jurisdiction of court.

40.007. 1. Each person subject to sections 40.005 to 40.490 discharged from the state military forces who is later charged with having fraudulently obtained a discharge shall be subject to section 40.141, shall be subject to trial by court-martial on that charge and shall, after apprehension, be subject to sections 40.005 to 40.490 while in the custody of the military for that trial. Upon conviction of that charge such person is subject to trial by court-martial for all offenses under sections 40.005 to 40.490 committed before the fraudulent discharge.

2. No person who has deserted from the state military forces may be relieved from amenability to the jurisdiction of sections 40.005 to 40.490 by virtue of a separation from any subsequent period of service.

3. The fact that any person charged with an offense under sections 40.005 to 40.490 is separated from the service while proceedings are pending or while undergoing sentence shall not affect the jurisdiction of any court-martial.

(L. 1984 H.B. 1035 § 3)

Dismissal of commissioned officer, by governor--right to trial,procedure--discharge substituted for dismissal, when--reappointment--no right to trial, when.

40.010. 1. Any commissioned officer subject to sections 40.005 to 40.490, dismissed by order of the governor, may make a written application for trial by court-martial setting forth, under oath, that he has been wrongfully dismissed. In such event, the governor, as soon as practicable, shall convene a general court-martial to try such officer on the charges on which he was dismissed. A court-martial so convened shall have jurisdiction to try the dismissed officer on such charge, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal, the adjutant general shall substitute for the dismissal ordered by the governor a form of discharge authorized for administrative issue.

2. If the governor fails to convene a general court-martial within six months from the presentation of an application for trial under this section, the adjutant general shall substitute for the dismissal ordered by the governor a form of discharge authorized for administrative issue.

3. If a discharge is substituted for a dismissal under sections 40.005 to 40.490, the governor alone may reappoint the officer to the grade and rank as that former officer would have attained had the officer not been dismissed. The reappointment of such a former officer may be made only if a vacancy is available under applicable tables of organization. All the time between the dismissal and the reappointment shall be considered as actual service for all state purposes.

4. If an officer is discharged from the state military forces by administrative action or by board proceedings under law or is dropped from the rolls by order of the governor, the officer has no right to trial under this section.

(L. 1984 H.B. 1035 § 4)

Jurisdiction of military courts.

40.015. 1. Sections 40.005 to 40.490 apply throughout this state. Such sections also apply to all persons otherwise subject to sections 40.005 to 40.490 while they are serving outside the state, and while they are going to and returning from such service outside the state, in the same manner and to the same extent as if they were serving inside the state.

2. Courts-martial and courts of inquiry may be convened and held in units of the state military forces while those units are serving outside the state with the same jurisdiction and powers as to persons subject to sections 40.005 to 40.490 as if the proceedings were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state.

(L. 1984 H.B. 1035 § 5)

State judge advocate, appointment, qualifications--assistantjudge advocates, appointment, qualifications, restrictions.

40.017. 1. The adjutant general shall appoint a judge advocate officer of the state military forces as state judge advocate. To be eligible for appointment, such officer shall have been a member of the Missouri Bar for at least five years, and shall have satisfactorily completed all educational requirements for active military service as a field grade judge advocate general corps officer or Air National Guard equivalent.

2. The adjutant general may appoint as many assistant state judge advocates as he considers necessary. To be eligible for appointment, assistant state judge advocates must be officers of the state military forces and members of the Missouri Bar.

3. The state judge advocate or his assistants shall make inspections in the field in supervision of the administration of military justice.

4. Convening authorities shall at all times communicate directly with their staff judge advocates or legal officer in matters relating to the administration of military justice; and the staff judge advocate or legal officer of any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the state judge advocate.

5. No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer, or who has been a witness for either the prosecution or defense, in any case may later act as staff judge advocate or legal officer to any reviewing authority upon the same case.

(L. 1984 H.B. 1035 § 6)

Apprehension defined--authority to apprehend, when.

40.020. 1. "Apprehension" is the taking of a person subject to sections 40.005 to 40.490 into custody.

2. Any person authorized by sections 40.005 to 40.490 or by regulations issued under those sections, to apprehend persons subject to sections 40.005 to 40.490, any marshal of a court-martial appointed pursuant to the provisions of sections 40.005 to 40.490, and any peace officer authorized to do so by law, may do so upon reasonable belief that an offense under sections 40.005 to 40.490 has been committed and that the person apprehended committed it.

3. Commissioned officers, warrant officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to sections 40.005 to 40.490 and to apprehend persons subject to sections 40.005 to 40.490 who take part therein.

(L. 1984 H.B. 1035 § 7)

Absent without leave, authority to apprehend--offender outsidestate, procedure.

40.023. Any civil officer having authority to apprehend offenders under the laws of the United States or of a state, territory, commonwealth, or possession, or the District of Columbia, or any military officer subject to sections 40.005 to 40.490 who has been authorized by the governor by regulation may summarily apprehend any person subject to sections 40.005 to 40.490 who is absent without leave from the state military forces and deliver him into the custody of the state military forces. If an offender is apprehended outside the state, his return to the area must be in accordance with normal extradition procedures or reciprocal agreement.

(L. 1984 H.B. 1035 § 8)

Arrest--confinement--definitions--probable cause required--procedure--enlisted member--commissioned officer.

40.025. 1. "Arrest" is the restraint of a person by an order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits. "Confinement" is the physical restraint of a person.

2. An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to sections 40.005 to 40.490 or through any person authorized by sections 40.005 to 40.490 to apprehend persons. A commanding officer may authorize warrant officers or noncommissioned officers to order enlisted members of his command or subject to his authority into arrest or confinement.

3. A commissioned officer or warrant officer may be ordered apprehended or into arrest or confinement only by a commanding officer to whose authority he is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons apprehended or into arrest or confinement may not be delegated.

4. No person may be ordered apprehended or into arrest or confinement except upon probable cause, and a written record of the facts and circumstances upon which probable cause was made shall be kept.

5. This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.

(L. 1984 H.B. 1035 § 9, A.L. 1986 H.B. 1505)

Orders for arrest and confinement, when--certain offenses,confinement not required--defendant's rights--power to issuewarrants--bail, when.

40.030. 1. Any person subject to sections 40.005 to 40.490 charged with an offense under sections 40.005 to 40.490 may be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, such person shall not ordinarily be placed in confinement. When any person subject to sections 40.005 to 40.490 is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform the person of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.

2. The convening authority of any court-martial shall have the power to issue warrants of apprehension directed to the sheriff or police officer within the proper county to apprehend persons subject to sections 40.005 to 40.490 charged with an offense under sections 40.005 to 40.490 and to deliver such persons into the custody of the state military forces.

3. In cases where the unit of which the accused is a member is not in a status of active state duty or engaged in annual field training, such accused, if apprehended or ordered into confinement prior to or during trial by a military court, may be admitted to bail by the officer exercising special court-martial jurisdiction over him or by a superior commanding officer, or the adjutant general.

(L. 1984 H.B. 1035 § 10)

Confinement, where.

40.035. Persons confined other than in a military institution, whether before, during or after trial by a military court, shall be confined in municipal, county or state confinement facilities designated by the governor or by such person as the governor may authorize to act.

(L. 1984 H.B. 1035 § 11)

Jails and prisons required to keep prisoners, when--official's duties.

40.036. 1. No provost marshal, commander of a guard, warden, keeper, or officer of a city or county jail or any other jail, penitentiary, or prison designated under section 40.035 may refuse to receive or keep any prisoner committed to his charge, when the committing person furnishes a statement, signed by him, of the offense charged against the prisoner.

2. Every commander of a guard, warden, keeper, or officer of a city or county jail or of any other jail, penitentiary, or prison designated under section 40.035, to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as he is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment.

(L. 1984 H.B. 1035 § 12)

Confinement requirements--other punishment prohibited--exception.

40.038. Subject to section 40.180, no person, while being held for trial or the result of trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon the person be any more rigorous than the circumstances require to insure his presence, but the person may be subjected to the same treatment and discipline as persons confined under the authority of this state or its political subdivisions.

(L. 1984 H.B. 1035 § 13)

Civil offenses, delivery to civil authority for trial--offender alsosentenced to court-martial to be returned to military, when.

40.040. 1. Under such regulations as may be prescribed under sections 40.005 to 40.490, a person subject to sections 40.005 to 40.490 who is on active state duty who is accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial.

2. When delivery under this section is made to any civil authority of a person undergoing sentence of a court-martial and the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender, after having answered to the civil authorities for the offense, shall, upon the request of competent military authority, be returned to military custody for the completion of such sentence of the court-martial.

(L. 1984 H.B. 1035 § 14, A.L. 1986 H.B. 1505)

Disciplinary punishment for minor offenses, no court-martial required--appeal procedure--right of accused to trial by court-martial.

40.043. 1. Under such regulations as the governor may prescribe, any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one of the following disciplinary punishments for minor offenses without the intervention of a court-martial:

(1) Upon an officer of his command:

(a) Withholding of privileges for not more than two consecutive weeks;

(b) Restriction to certain specified limits, with or without suspension from duty, for not more than two consecutive weeks; or

(c) If imposed by the governor, the adjutant general, or the commanding officer of a division, wing, brigade, battalion, group, or similar organization, a fine or forfeiture of pay and allowances of not more than one hundred fifty dollars;

(2) Upon other military personnel of his command:

(a) Withholding of privileges for not more than two consecutive weeks;

(b) Restriction to certain specified limits, with or without suspension from duty, for not more than two consecutive weeks;

(c) Extra duties for not more than fourteen days, which need not be consecutive, and for not more than two hours per day, holidays included;

(d) Reduction to next inferior grade if the grade from which demoted was established by the command or an equivalent or lower command; or

(e) If imposed by an officer exercising special court-martial jurisdiction over the offender, a fine or forfeiture of pay and allowances of not more than fifty dollars.

2. The governor may, by regulation, place limitations on the powers granted by this section with respect to the kind and amount of punishment authorized and the categories of commanding officers authorized to exercise those powers.

3. An officer in charge may, for minor offenses, impose on enlisted members assigned to the unit or element of which the officer is in charge, such of the punishments authorized to be imposed by commanding officers as the governor may by regulation specifically prescribe, as provided in subsections 1 and 2 of this section.

4. Except where punishment has been imposed by the governor, a person punished under this section who considers his punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The officer who imposes the punishment, his successor in command, and superior authority may suspend, set aside, or remit any part or amount of the punishment and restore all rights, privileges and property affected.

5. The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial 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 shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

6. Whenever a punishment of forfeiture of pay and allowances is imposed under this section, the forfeiture may apply to pay or allowances accruing on or after the date that punishment is imposed and to any pay and allowances accrued before that date.

7. Any punishment authorized by this section which is measured in terms of days shall, when served in a status other than annual field training, be construed to mean succeeding active service days.

(L. 1984 H.B. 1035 § 15, A.L. 1991 S.B. 358)

Effective 6-12-91

Personnel serving on courts for courts-martial--branches of NationalGuard, jurisdiction.

40.050. 1. The three kinds of courts-martial in the state military forces are:

(1) General courts-martial, consisting of:

(a) A military judge and not less than twelve members; or

(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 in writing a court composed only of a military judge and the military judge approves;

(2) Special courts-martial, consisting of:

(a) Not less than twelve members;

(b) A military judge and not less than twelve members; or

(c) Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in paragraph (b) of subdivision (1) of this subsection so requests;

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

2. The Army National Guard and the Air National Guard each has court-martial jurisdiction over all persons subject to sections 40.005 to 40.490. The exercise of jurisdiction by the Army National Guard over Air Guard personnel, or the Air National Guard over Army Guard personnel shall be in accordance with regulations prescribed by the governor.

(L. 1984 H.B. 1035 § 16)

General courts-martial, jurisdiction--punishment.

40.055. General courts-martial have jurisdiction to try persons subject to sections 40.005 to 40.490 for any offense made punishable by sections 40.005 to 40.490 and may, under such limitations as the governor may prescribe, adjudge any of the following punishments:

(1) A fine of not more than two hundred dollars, or confinement not more than three months, or both;

(2) Forfeiture of pay and allowances for a period not exceeding six months;

(3) A reprimand;

(4) Dismissal, dishonorable or bad conduct discharge;

(5) Reduction of a noncommissioned officer to any lower enlisted grade; or

(6) Any combination of these punishments; and

(7) Costs.

(L. 1984 H.B. 1035 § 17, A.L. 1986 H.B. 1505)

Special courts-martial, jurisdiction--punishment--exceptions.

40.060. Special courts-martial shall have jurisdiction to try persons subject to sections 40.005 to 40.490, except commissioned officers for any offense made punishable by sections 40.005 to 40.490 and may, under such limitations as the governor may prescribe, adjudge any of the following punishments:

(1) A fine of not more than one hundred dollars;

(2) Forfeiture of pay and allowances for a period not exceeding six months;

(3) A reprimand;

(4) Reduction of a noncommissioned officer to any lower enlisted grade;

(5) A bad conduct discharge; or

(6) Any combination of these punishments; and

(7) Costs.

(L. 1984 H.B. 1035 § 18, A.L. 1986 H.B. 1505)

Summary courts-martial, jurisdiction--punishment--objection byaccused, trial by general or special courts-martial.

40.065. 1. Summary courts-martial have jurisdiction to try enlisted persons subject to sections 40.005 to 40.490 for any offense made punishable by sections 40.005 to 40.490 and may, under such limitations as the governor may prescribe, adjudge any of the following punishments:

(1) A fine of not more than twenty-five dollars for a single offense;

(2) A forfeiture of pay and allowances for no more than two-thirds of one month's pay; or

(3) Reduction to the next lower grade; and

(4) Costs.

2. No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. If objection to trial by summary court-martial is made by an accused, trial shall be ordered by special or general court-martial as may be appropriate.

(L. 1984 H.B. 1035 § 19, A.L. 1986 H.B. 1505)

Discharges or dismissals by courts-martial, requirements--governor'sapproval required.

40.070. A dishonorable discharge, bad conduct discharge, punitive discharge or dismissal may not be adjudged by any court-martial unless a complete written record of the proceedings and testimony before the court has been made, nor shall such sentence be executed until approved by the governor.

(L. 1984 H.B. 1035 § 20)

Sentence to confinement at one dollar a day instead of fine--limitations.

40.075. Subject to the limitations of sections 40.055 to 40.065, a court-martial may, instead of imposing a fine, sentence to confinement for not more than one day for each dollar of the authorized fine.

(L. 1984 H.B. 1035 § 21)

Jurisdiction of courts-martial--accused of civil offense, releaseto civil authorities--accused of both civil and military offenses,released to civil authorities, when.

40.079. The jurisdiction of a court-martial is limited to the trial of persons accused of military offenses as described in sections 40.005 to 40.490. Persons subject to sections 40.005 to 40.490 who are accused of offenses cognizable by the civil courts of this state or any other state where the military forces are present in that state may, upon accusation, be promptly surrendered to civil authorities for disposition, urgencies of the service considered. If the person is accused of both a military offense under sections 40.005 to 40.490 and a civil offense by the civil authorities, the person shall be released to the civil authorities if the crime for which he is accused by the civil authorities carries a penalty in excess of the maximum penalty provided by sections 40.005 to 40.490.

(L. 1984 H.B. 1035 § 22)

Convening general courts-martial, persons authorized.

40.083. 1. General courts-martial may be convened by any of the following:

(1) The governor;

(2) The adjutant general;

(3) The commanding officer of a division, a separate brigade, or a separate wing;

(4) Any other commanding officer in any of the state military forces when empowered by the governor.

2. When any such commanding officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority when deemed desirable by such authority.

(L. 1984 H.B. 1035 § 23)

Convening special courts-martial, persons authorized.

40.085. In the state military forces any person authorized to convene a general court-martial, the commanding officer of a garrison, fort, post, camp, station, air base, auxiliary air base, or other place where troops are on duty, or of a brigade, regiment, wing, group, separate battalion, separate squadron, or other detached command, may convene special courts-martial. When any such officer is an accuser, the court shall be convened by superior competent authority and may, in any case, be convened by such authority when deemed advisable by him.

(L. 1984 H.B. 1035 § 24)

Convening summary courts-martial, persons authorized.

40.088. 1. In the state military forces any person authorized to convene a general or special court-martial, the commanding officer of a garrison, fort, post, camp, station, air base, auxiliary air base, or other place where troops are on duty, or of a brigade, regiment, wing, group, separate battalion, separate squadron, or other detached command, may convene a summary court-martial.

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

(L. 1984 H.B. 1035 § 25)

Eligibility to serve on courts-martial--members, how determined--unit, defined--ineligible persons.

40.090. 1. Any commissioned officer of or on duty with the state military forces is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.

2. Any warrant officer of or on duty with the state military forces is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such court for trial.

3. (1) 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 who may lawfully be brought before such courts for trial, but he shall serve as a member of court only if before the conclusion of a session called by the military judge under section 40.130 prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted members serve on it. After such 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-half of the total membership of the court, unless eligible members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be convened 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.

(2) In this section, the word "unit" means any regularly organized body of the state military forces not larger than a company, a squadron, or a corresponding body.

4. (1) No person subject to sections 40.005 to 40.490 may be tried by a court-martial any member of which is junior to such person in rank or grade.

(2) When convening a court-martial, the convening authority shall detail as members thereof such members as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.

(L. 1984 H.B. 1035 § 26)

Military judge--appointment--qualifications--duties--restrictions.

40.095. 1. The authority convening a general or special court-martial shall detail a military judge thereto. A military judge shall preside over each open session of the court-martial to which the judge had been detailed.

2. A military judge shall be a commissioned officer of the National Guard or a retired officer of the reserve components of the Armed Forces of the United States, shall be a member of the Missouri Bar and shall be certified to be qualified for such duty by the state judge advocate. The state judge advocate may recommend to the adjutant general that the adjutant general order to active duty retired personnel of the United States Armed Forces who are qualified to act as military judges.

3. No person is eligible to act as military judge in a case if the person is the accuser or a witness for the prosecution or has acted as investigation officer or a counsel in the same case.

4. Neither the convening authority nor any member of his staff shall prepare or review any report concerning the effectiveness, fitness or efficiency of a military judge which relates to the judge's performance of duty as such. A commissioned officer who is certified to be qualified for duty as a military judge of a court-martial may perform such duties only when he is assigned and directly responsible to the state judge advocate and may perform duties of a judicial or nonjudicial nature other than those relating to the primary duty as a military judge of a court-martial when such duties are assigned to him by or with the approval of the state judge advocate. The military judge of a court-martial may not consult with the members of the court on the form of the findings, except in the presence of the accused, trial counsel, and defense counsel, nor may the judge vote with the members of the court.

(L. 1984 H.B. 1035 § 27)

Trial counsel and defense counsel appointed, when--qualifications--restrictions.

40.098. 1. For each general and special court-martial the authority convening the court shall detail trial counsel and defense counsel, and such assistants as he considers appropriate. No person who has acted as investigating officer, military judge, or court member in any case shall act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant defense counsel in the same case. No person who has acted for the prosecution shall act later in the same case for the defense, nor shall any person who has acted for the defense act later in the same case for the prosecution.

2. Trial counsel or defense counsel detailed for a court-martial:

(1) Must be an officer of the military forces, who is a graduate of an accredited law school and a member of the Missouri Bar, or must be a member of the bar of a federal court or of the highest court of a state; and

(2) Must be certified as competent to perform such duties by the state judge advocate.

(L. 1984 H.B. 1035 § 28)

Court reporters, appointment, when.

40.100. Under such regulations as the governor may prescribe, the convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court. Under like regulations, the convening authority of a military court may detail or employ interpreters who shall interpret for the court.

(L. 1984 H.B. 1035 § 29)

Members of general and special courts-martial required to be present,exceptions--members or military judge replaced, procedure.

40.105. 1. No member of a general or special court-martial shall be absent or excused after court has been assembled for the trial of the accused except for physical disability or as the result of a challenge or by order of the convening authority for good cause.

2. Whenever a general court-martial, other than one composed of a military judge only, is reduced below twelve members, the trial shall not proceed unless the convening authority details new members sufficient in number to provide not less than twelve members. When the new members have been sworn, the trial may proceed after the recorded testimony of each witness previously examined has been read to the court in the presence of the military judge, the accused, and counsel for both sides.

3. Whenever a special court-martial is reduced below twelve members, the trial shall not proceed unless the convening authority appoints new members sufficient in number to provide not less than twelve members. When such new members have been sworn, the trial shall proceed with the new members present as if no evidence has previously been introduced at the trial, unless a verbatim record of the evidence previously introduced before the member of the court or a stipulation thereof is read to the court in the presence of the military judge, if any, the accused, and counsel for both sides.

4. If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable conditions of section 40.050, after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation thereof is read in court in the presence of the new military judge, the accused, and counsel for both sides.

(L. 1984 H.B. 1035 § 30)

Charges--contents--oath--accused to be informed.

40.108. 1. Charges and specifications shall constitute an information and shall be signed by a person subject to sections 40.005 to 40.490 under oath before a person authorized by sections 40.005 to 40.490 to administer oaths and shall state:

(1) That the signer has personal knowledge of, or has investigated, the matters set forth therein; and

(2) That they are true in fact to the best of his knowledge and belief.

2. Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges against him as soon as practicable.

(L. 1984 H.B. 1035 § 31, A.L. 1986 H.B. 1505)

Compelling self-incrimination prohibited--accused person's rights--violations not admitted in evidence.

40.112. 1. No person subject to sections 40.005 to 40.490 shall compel any person to incriminate himself or to answer any question, the answer to which may tend to incriminate the person.

2. No person subject to sections 40.005 to 40.490 shall interrogate or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected, that any statement made by him can and will be used as evidence against him in a trial by court-martial, that he has a right to consult with a lawyer, and that he has a right to have a lawyer present during questioning, as well as other constitutional safeguards provided for an accused person or a person suspected of an offense.

3. No person subject to sections 40.005 to 40.490 shall compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade the person.

4. No statement obtained from any person in violation of this section, or through the use of coercion, unlawful influence or unlawful inducement shall be received in evidence against the person in a trial by court-martial.

5. The requirements of this section are binding on all persons administering sections 40.005 to 40.490 but failure to follow them does not divest a military court of jurisdiction.

(L. 1984 H.B. 1035 § 32)

Impartial investigation of charges required--accused person's rights--demand for further investigation, procedure.

40.114. 1. No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

2. The accused shall be advised of the charges against him and of the right to be represented at that investigation by counsel. Upon the accused's own request he shall be represented by civilian counsel if provided by the accused, or military counsel of the accused's own selection if such counsel is reasonably available, or by counsel detailed by the state judge advocate. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against the accused if they are available and to present anything the accused may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.

3. If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection 2 of this section, no further investigation of that charge is necessary under this section unless it is demanded by the accused after he is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his own behalf.

4. The requirements of this section are binding on all persons administering sections 40.005 to 40.490 but failure to follow them does not divest a military court of jurisdiction.

(L. 1984 H.B. 1035 § 33)

Charges forwarded to officer exercising general court-martialjurisdiction, when--delay requirements.

40.117. When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, the commanding officer shall report in writing to such officer the reasons for delay.

(L. 1984 H.B. 1035 § 34)

Referring charges for trial requirements to be met in generalcourt-martial.

40.119. 1. Before directing the trial of any charge by general court-martial, the convening authority shall refer it to the state judge advocate for consideration and advice. The convening authority may not refer a charge to a general court-martial for trial unless he has found that the charge alleges an offense under sections 40.005 to 40.490 and is warranted by evidence indicated in the report of the investigation.

2. If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence shall be made.

(L. 1984 H.B. 1035 § 35)

Copy of charges served on accused by trial counsel--timerequirement before he can be brought to trial.

40.121. The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. In time of peace, no person shall, against his objection, be brought to trial, or be required to participate by himself or counsel in a session called by the military judge under section 40.130 in a general court-martial case within a period of five days after the service of the charges upon him, or in a special court-martial within a period of three days after the service of the charges upon him.

(L. 1984 H.B. 1035 § 36)

Procedure in military courts.

40.124. The procedure, including modes of proof, in cases before military courts and other military tribunals may be prescribed by the governor by regulations, which shall apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the courts of this state, but which shall not be contrary to or inconsistent with sections 40.005 to 40.490.

(L. 1984 H.B. 1035 § 37)

Attempts to influence or coerce court prohibited--exceptions.

40.126. 1. No authority convening a general, special, or summary court-martial nor any other commanding officer, or officer serving on the staff thereof, shall censure, reprimand or admonish the court or any member, military judge or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to sections 40.005 to 40.490 may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving or reviewing authority with respect to his judicial acts. The foregoing provisions shall not apply to:

(1) General instructional or informational courses in military justice, if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial; or

(2) Statements and instructions given in open court by the military judge or counsel.

2. In the preparation of an effectiveness, fitness or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the state military forces is qualified to be advanced in grade or in determining the assignment or transfer of a member of the state military forces or in determining whether a member of the state military forces should be retained on duty, no person subject to sections 40.005 to 40.490 may in preparing any such report:

(1) Consider or evaluate the performance of duty of any such member as a member, military judge or trial counsel of a court-martial; or

(2) Give a less favorable rating or evaluation of any member of the state military forces because of the zeal with which such member as defense counsel represented any accused before a court-martial. This subsection is not applicable to evaluations made by the state judge advocate of the performance of personnel under his supervision.

(L. 1984 H.B. 1035 § 38)

Trial counsel, duties--defense counsel, duties--accused's right toprovide civilian counsel or choose military--assistant counsels,duties.

40.128. 1. The trial counsel of a general or special court-martial shall prosecute in the name of the state of Missouri and shall, under the direction of the court, prepare the record of the proceedings.

2. The accused has the right to be represented in his defense before a general or special court-martial by civilian counsel if provided by the accused, or by military counsel of his own selection if reasonably available, or by the defense counsel detailed under section 40.098. Should the accused have counsel of his own selection, the defense counsel, and assistant defense counsel, if any, who were detailed, shall, if the accused so desires, act as the accused's associate counsel; otherwise they shall be excused by the military judge.

3. In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of such matters the defense counsel feels should be considered in behalf of the accused on review, including any objection to the contents of the record which he considers appropriate.

4. An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by section 40.098, perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.

5. An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when he is qualified to be the defense counsel as required by section 40.098, perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.

(L. 1984 H.B. 1035 § 39)

Pretrial motions, arraignment, pleas, court in session withoutmembers--proceedings to be in presence of accused and counsel--exceptions, vote and deliberations of members.

40.130. 1. At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to section 40.121 call the court into session without the presence of the members for the purpose of:

(1) Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;

(2) Hearing and ruling upon any matter which may be ruled upon by the military judge whether or not the matter is appropriate for later consideration or decision by the members of the court;

(3) Holding the arraignment and receiving the pleas of the accused; and

(4) Performing any other procedural function which may be performed by the military judge under sections 40.005 to 40.490 or under rules prescribed pursuant to section 40.124 and which does not require the presence of the members of the court. These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made part of the record.

2. When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in cases in which a military judge has been detailed to the court, the military judge.

(L. 1984 H.B. 1035 § 40)

Continuances, granted, when.

40.133. A military judge or a summary court may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

(L. 1984 H.B. 1035 § 41)

Challenges, general or special court-martial.

40.135. 1. The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge shall determine the relevancy and validity of challenges for cause, and shall not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

2. Each accused and the trial counsel is entitled to two peremptory challenges, but the military judge may not be challenged except for cause.

(L. 1984 H.B. 1035 § 42)

Oath required for all judges, members, counsel, reporters,interpreters.

40.138. 1. Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. The form of the oath, the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulations of the governor. These regulations may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel, or assistant defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty, and if such an oath is taken it need not again be taken at the time the judge advocate or other person is detailed to that duty.

2. Each witness before a military court shall be examined on oath or affirmation.

(L. 1984 H.B. 1035 § 43)

Time limitation to bring action--war time, certain offenses nolimitation--computation.

40.141. 1. A person charged with sedition, mutiny, or aiding a hostile force, or desertion or absence without leave in time of war may be tried and punished at any time without limitation.

2. Except as otherwise provided in this section, a person charged with desertion in time of peace or with the offense punishable under section 40.398 is not liable to be tried by court-martial if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.

3. Except as otherwise provided in this section, a person charged with any offense is not liable to be tried by court-martial or punished under section 40.043 if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 40.043.

4. Periods in which the accused was absent from territory in which the state has the authority to apprehend him, or in the custody of civil authorities, or in the hands of a hostile force, shall be excluded in computing the period of limitation prescribed in this section.

(L. 1984 H.B. 1035 § 44)

Res judicata to apply, when--exception not a bar to civilianprosecution.

40.144. 1. No person subject to sections 40.005 to 40.490 shall, without his consent, be tried a second time for the same offense in a military court convened under sections 40.005 to 40.490. Prosecution under sections 40.005 to 40.490 shall not bar prosecution by civil authorities for a crime or offense growing out of the same act or omission committed in violation of the laws of the civil jurisdiction, unless prohibited by res judicata or double jeopardy.

2. No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed. However, a proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority, or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused, is a trial in the sense of this section.

(L. 1984 H.B. 1035 § 45)

Not guilty plea, entered when.

40.148. 1. A plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty, if after arraignment before a court-martial:

(1) An accused makes an irregular pleading;

(2) After a plea of guilty an accused sets up a matter inconsistent with the plea;

(3) It appears that an accused has entered a plea of guilty improvidently or through lack of understanding of its meaning or effect; or

(4) An accused fails or refuses to plead.

2. With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or summary court, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to the announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

(L. 1984 H.B. 1035 § 46)

Witnesses and evidence, authority to obtain.

40.150. 1. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the governor may prescribe.

2. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which the courts of this state having criminal jurisdiction may lawfully issue and shall run to any part of the state and to any other state or territory, district or possession in which the court-martial may be sitting.

(L. 1984 H.B. 1035 § 47)

Witness, willful failure to appear or to produce evidence, penalty--prosecutor shall prosecute.

40.153. 1. Any person not subject to sections 40.005 to 40.490 is guilty of a class C misdemeanor who:

(1) Has been duly subpoenaed to appear as a witness or to produce books and records before a military court or before any military or civil officer designated to take a deposition to be read in evidence before such a court;

(2) Has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the circuit courts of this state; and

(3) Willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce.

2. Upon the certification of the facts under subsection 1 of this section by the military judge or summary court officer to the prosecuting attorney of the county where the offense occurred, the prosecuting attorney shall prosecute.

(L. 1984 H.B. 1035 § 48)

Contempt, authority of military court--penalties.

40.155. 1. A military court may punish for contempt any person subject to sections 40.005 to 40.490 who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. Such punishment may not exceed confinement for thirty days or a fine of one hundred dollars, or both.

2. Any person other than a member of the National Guard who shall resort to disorderly, contemptuous or insolent behavior in, or use any insulting or indecorous language or expressions to or before, any military court, or any member of either of such courts, in open court, to interrupt the proceedings or to impair the authority of such courts, shall be guilty of a class C misdemeanor and may be arrested by the order of the president of the court, and at once delivered to the civil authorities for prosecution as provided in subsection 2 of section 40.153.

(L. 1984 H.B. 1035 § 49)

Depositions authorized, when--procedure--exception--admitted intoevidence, when.

40.157. 1. At any time after charges have been signed, as provided in section 40.108, any party may take oral or written depositions unless the military judge or an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority shall designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.

2. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

3. Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of this state or by the laws of the place where the deposition is taken to administer oaths.

4. A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence before any court-martial or in any proceeding before a court of inquiry, if it appears:

(1) That the witness is dead; or

(2) That the witness is out of the state and the witness' appearance cannot be obtained, unless it appears that the absence of the witness was procured by the party offering the deposition; or

(3) That the witness is unable to attend or testify because of sickness, infirmity, imprisonment, military necessity, age, or nonamenability to process, or other reasonable cause; or

(4) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena or other process.

(L. 1984 H.B. 1035 § 50)

Sworn testimony in court of inquiry, record admissible in evidence,when--exception.

40.160. 1. In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence.

2. Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.

3. Such testimony may also be read in evidence before a court of inquiry or a military board.

(L. 1984 H.B. 1035 § 51)

Voting by members, procedure, general or special court-martial--instructions, content--exceptions--judge to rule on all questions oflaw.

40.165. 1. Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall in each case count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.

2. The military judge and, except for questions of challenge, the presiding officer of a court-martial without a military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the presiding officer of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, constitutes the ruling of the court.

3. Before a vote is taken on the findings, the military judge shall in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them:

(1) That the accused must be presumed to be innocent until guilt is established by legal and competent evidence beyond reasonable doubt;

(2) That in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;

(3) That, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and

(4) That the burden of proof of establishing the guilt of the accused beyond reasonable doubt is upon the prosecution.

4. Subsections 1, 2, and 3 of this section do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge and impose appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.

(L. 1984 H.B. 1035 § 52)

Conviction to be by concurrence, exception--general court-martialmajority, when--tie vote on challenge, effect.

40.168. 1. No person may be convicted of an offense, except by the concurrence of all of the members present at the time the vote is taken unless such person enters a guilty plea.

2. All sentences shall be determined by the concurrence of all of the members present at the time that the vote is taken.

3. All other questions to be decided by the members of a general court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence with a view toward decreasing it may be made by a lesser vote which indicates a different result would be obtained. A tie vote on a challenge disqualifies the member challenged.

(L. 1984 H.B. 1035 § 53)

Sentence and findings announced, when.

40.170. A court-martial shall announce its findings and sentence to the parties as soon as determined.

(L. 1984 H.B. 1035 § 54)

Record of proceedings authentication--verbatim, record not requiredwhen--copy to be furnished accused, when.

40.173. 1. Each general court-martial shall keep a separate record of the proceedings of the trial of each case brought before it and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of the judge's death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by a member of the court-martial if the trial counsel is unable to authenticate it by reason of his death, disability, or absence. If the proceedings have resulted in an acquittal of all charges and specifications or in a sentence not including discharge and not in excess of that which may otherwise be adjudged by a special court-martial, the record need not contain a verbatim account of the proceedings and testimony before the court, but shall contain such matters as the governor may by regulation prescribe.

2. Each special and summary courts-martial shall keep a separate record of the proceedings in each case, which record shall contain such matter and shall be authenticated in such manner as the governor may by regulation prescribe.

3. A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated. If a verbatim record of trial by general court-martial is not required by subsection l of this section, but has been made, the accused may buy such a record under such regulations as the governor may prescribe.

(L. 1984 H.B. 1035 § 55)

Cruel and unusual punishment prohibited.

40.175. Punishment by flogging, or by branding, or marking or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to sections 40.005 to 40.490. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

(L. 1984 H.B. 1035 § 56)

Punishment, governor may prescribe limits.

40.178. The punishment which a court-martial may direct for any offense may not exceed such limits as the governor may prescribe for that offense subject to the limits prescribed by sections 40.005 to 40.490.

(L. 1984 H.B. 1035 § 57)

Sentence, forfeiture of pay or allowance, effective when--confinement, begins to run, when, exceptions, how computed--defer service of sentence, when.

40.180. 1. Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended or deferred, the forfeiture may apply to pay or allowances accrued before that date.

2. Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement. Regulations prescribed by the governor may provide that sentences of confinement may not be executed until approved by designated officers.

3. All other sentences of courts-martial are effective on the date ordered executed.

4. On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under the convening authority's jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no* longer under the officer's jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.

(L. 1984 H.B. 1035 § 58)

*Word "not" appears in original rolls.

Sentence of confinement, where served--hard labor may be required--fee for keeping prisoner authorized.

40.183. 1. A sentence of confinement adjudged by a military court, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the forces of the state military forces or in any jail, penitentiary, or prison designed for the purpose. Persons so confined in a jail, penitentiary, or prison are subject to the same discipline and treatment as persons confined or committed to the jail, penitentiary, or prison by the courts of this state or of any political subdivision.

2. The omission of the words "hard labor" from any sentence or punishment of a court-martial adjudging confinement does not deprive the authority executing that sentence or punishment of the power to require hard labor as a part of the punishment.

3. The keepers, officers, and wardens of city or county jails and of other jails, penitentiaries, or prisons designated by the governor, or by such person as the governor may authorize to act under section 40.035, shall receive persons ordered into confinement before trial and persons committed to confinement by a military court and shall confine them according to law. Any such keeper may require payment of a reasonable fee for so receiving or confining a person to be paid upon requisition of the office of the adjutant general after confinement.

(L. 1984 H.B. 1035 § 59)

Sentence, convening authority may approve, suspend or commute.

40.185. Except as provided in section 40.183, a court-martial sentence, unless suspended, may be ordered executed by the convening authority when approved by that authority. The convening authority shall approve the sentence or such part, amount, or commuted form of the sentence as he sees fit, and may suspend the execution of the sentence as approved by him.

(L. 1984 H.B. 1035 § 60)

Trial record review by reviewing authority.

40.190. After a trial by court-martial the record shall be forwarded to the convening authority, as reviewing authority, and action thereon may be taken by the person who convened the court, a commissioned officer commanding for the time being in the absence of the convening authority, a successor in command, any officer exercising general court-martial jurisdiction, or by the governor.

(L. 1984 H.B. 1035 § 61)

Opinion on general court-martial--drafted by whom--acquittal,limitations.

40.193. The convening authority shall refer the record of each general court-martial to his staff judge advocate or legal officer, who shall submit his written opinion thereon to the convening authority. If there is no qualified staff judge advocate or legal officer available, the state judge advocate shall assign a judge advocate officer for such purpose. If the final action of the court has resulted in an acquittal of all charges and specifications, the opinion shall be limited to questions of jurisdiction.

(L. 1984 H.B. 1035 § 62)

Record returned for reconsideration, when.

40.195. 1. If a specification before a court-martial has been dismissed on motion and the ruling does not amount to a finding of not guilty, the convening authority may return the record to the court for reconsideration of the ruling and any further appropriate action.

2. Where there is an apparent error or omission in the record or where the record shows improper or inconsistent action by a court-martial with respect to a finding or sentence which can be rectified without material prejudice to the substantial rights of the accused, the convening authority may return the record to the court for appropriate action. In no case, however, may the record be returned:

(1) For reconsideration of a finding of not guilty, or a ruling which amounts to a finding of not guilty;

(2) For reconsideration of a finding of not guilty of any charge, unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of sections 40.005 to 40.490; or

(3) For increasing the severity of the sentence unless the sentence prescribed for the offense is mandatory.

(L. 1984 H.B. 1035 § 63)

Rehearing limitations--dismissal of charges, when.

40.198. 1. If the convening authority disapproves the findings and sentence of a court-martial that authority may, except where there is lack of sufficient evidence in the record to support the findings, order a rehearing. In such a case the convening authority shall state the reasons for disapproval. If he disapproves the findings and sentence and does not order a rehearing, the convening authority shall dismiss the charges.

2. Each rehearing shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused shall not be tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be imposed, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory.

(L. 1984 H.B. 1035 § 64)

Sentence, approval by convening authority--powers.

40.200. In acting on the findings and sentence of a court-martial, the convening authority may approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as the convening authority in his discretion determines should be approved. Unless he indicates otherwise, approval of the sentence is approval of the findings and sentence.

(L. 1984 H.B. 1035 § 65)

Review--prohibited, when--general court-martial--bad conductdischarge, special court-martial--all other special and summarycourts-martial.

40.203. 1. When the governor has taken final action in a court-martial case in which he is the convening authority, there shall be no further review.

2. When a convening authority other than the governor has taken final action in a general court-martial case, he shall forward the entire record, including his action thereon and the opinion or opinions of the staff judge advocate or legal officer, to the state judge advocate.

3. Where the sentence of a special court-martial as approved by the convening authority includes a bad conduct discharge, whether or not suspended, the record shall be forwarded to the officer exercising general court-martial jurisdiction over the command to be reviewed in the same manner as a record of trial by a general court-martial. If the sentence as approved by an officer exercising general court-martial jurisdiction includes a bad conduct discharge, whether or not suspended, the record shall be forwarded to the state judge advocate.

4. All other special and summary court-martial records shall be reviewed by a judge advocate of the Army National Guard or Air National Guard and shall be transmitted and disposed of as the adjutant general may prescribe by regulations.

(L. 1984 H.B. 1035 § 66)

Record of trial examined by judge advocate--board of reviewto review, when.

40.205. Every record of trial by general court-martial in which there has been a finding of guilty and a sentence, and every record of trial by special court-martial in which the sentence as approved by an officer exercising general court-martial jurisdiction includes a bad conduct discharge, shall be examined in the office of the state judge advocate. If the state judge advocate so directs, the record shall be reviewed by a board of review in accordance with section 40.208.

(L. 1984 H.B. 1035 § 67)

Boards of review--appointment--membership--qualifications--powers andduties.

40.208. 1. The state judge advocate may constitute one or more boards of review, each composed of not less than three commissioned officers, each of whom shall be a member of the Missouri Bar and one of whom shall be a judge advocate of the Army or Air National Guard.

2. In a case referred to it, the board of review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

3. If the board of review sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

4. The state judge advocate shall, unless there is to be further action by the governor, instruct the convening authority to take action in accordance with the decision of the board of review. If the board of review has ordered a rehearing but the convening authority finds a rehearing impracticable, he may dismiss the charges.

5. In the event one or more boards of review are constituted in accordance with this section, the state judge advocate shall prescribe uniform rules of procedure for proceedings in and before such board or boards of review.

(L. 1984 H.B. 1035 § 68)

Error of law, findings or sentence not incorrect unless prejudicial torights of accused.

40.210. 1. A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

2. Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm so much of the finding as includes a lesser included offense.

(L. 1984 H.B. 1035 § 69)

Appeals, when--accused's right to civilian counsel provided by himor military counsel--appellate military counsel, qualifications.

40.214. Upon review of the record of trial by general court-martial in which there has been a finding of guilty and a sentence and upon review of the record of trial by special court-martial in which the sentence as approved by an officer exercising general court-martial jurisdiction includes a bad conduct discharge, the accused shall have the right to be represented before the state judge advocate or the board of review, as the case may be, by military counsel if requested by him or by civilian counsel if provided by him. Appellate military counsel shall be a commissioned officer of the state military forces and shall be a member of the Missouri Bar.

(L. 1984 H.B. 1035 § 70)

Sentence approval by governor required, when--governor's powers--sentence approval by convening authority, powers.

40.216. 1. No sentence extending to the dismissal of a commissioned officer or dishonorable discharge or bad conduct discharge shall be executed until approved by the governor. He shall approve the sentence or such part, amount, or commuted form of the sentence as he sees fit, and may suspend the execution of the sentence or any part of the sentence, as approved by him.

2. All other court-martial sentences, unless suspended, may be ordered executed by the convening authority when approved by him. The convening authority may suspend the execution of any sentence.

(L. 1984 H.B. 1035 § 71)

Probationer, violations--hearing, rights of probationer to counsel--procedure.

40.218. 1. Prior to 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 the alleged violation of probation. The probationer shall be represented at the hearing by counsel if he so desires.

2. The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be forwarded for action to the officer exercising general court-martial jurisdiction. If he vacates the suspension, any unexecuted part of the sentence except a dismissal shall be executed.

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.

(L. 1984 H.B. 1035 § 72)

New trial, petition by accused when, grounds--time limitation.

40.220. At any time within two years after approval by the convening authority of a court-martial sentence which extends to dismissal, dishonorable or bad conduct discharge, the accused may petition the governor for a new trial on ground of newly discovered evidence or fraud on the court-martial.

(L. 1984 H.B. 1035 § 73)

Sentence, unexecuted portion--powers to remit or suspend, exception--discharge or dismissal ordered by governor, when.

40.225. 1. A convening authority 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.

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.

(L. 1984 H.B. 1035 § 74)

Sentence set aside or disapproved all rights restored, exception--dishonorable or bad-conduct discharge not sustained, effect--dismissal not sustained, effect.

40.228. 1. Under such regulations as the governor may prescribe, 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 such executed part is included in a sentence imposed upon a new trial or rehearing.

2. When a previously executed sentence of dishonorable or bad conduct discharge is not sustained on a new trial, the adjutant general shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of his enlistment.

3. When a previously executed sentence of dismissal is not sustained on a new trial, the adjutant general shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the governor alone to such commissioned grade and with such rank as in the opinion of the governor that former officer would have attained had that officer not been dismissed. The reappointment of such a former officer may be made if a position vacancy is available under applicable tables of organization. All time between the dismissal and reappointment shall be considered as service for all purposes.

(L. 1984 H.B. 1035 § 75)

Sentences, proceedings, findings are final, exception--appeal onquestions of law to state and federal courts.

40.230. The proceedings, findings and sentences of court-martial as reviewed and approved, as required by sections 40.005 to 40.490, and all dismissals and discharges carried into execution under sentences by courts-martial following review and approval, as required by sections 40.005 to 40.490, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the state subject only to action upon a petition for a new trial or action by the governor as provided in sections 40.220 and 40.225; provided, however, that nothing in sections 40.005 to 40.490 shall be construed to prevent petition to appropriate state or federal courts for relief on questions of law.

(L. 1984 H.B. 1035 § 76)

Appeals from final decisions, how made.

40.231. Appeals from final decisions in all courts-martial shall be made pursuant to Article V, Section 3 of the Constitution of this State.

(L. 1986 H.B. 1505)

Duty status required for conviction on certain offenses.

40.234. No person may be tried or punished for any offense provided for in sections 40.237 to 40.415, unless it was committed while the person was in a duty status.

(L. 1984 H.B. 1035 § 77)

Principal in actions defined.

40.237. Any person subject to sections 40.005 to 40.490 is a "principal" who:

(1) Commits an offense punishable by sections 40.005 to 40.490, or aids, abets, counsels, commands, or procures its commission; or

(2) Causes an act to be done which if directly performed by the person would be punishable by sections 40.005 to 40.490.

(L. 1984 H.B. 1035 § 78)

Assists offender, how punished.

40.240. Any person subject to sections 40.005 to 40.490 who, knowing that an offense punishable by sections 40.005 to 40.490 has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender's apprehension, trial, or punishment shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 79)

Attempt to commit offense may be part of offense.

40.245. 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 therein.

(L. 1984 H.B. 1035 § 80)

Attempt to commit offense even though failing in commission isoffense, when.

40.250. 1. An act, done with specific intent to commit an offense under sections 40.005 to 40.490, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.

2. Any person subject to sections 40.005 to 40.490 who attempts to commit any offense punishable by sections 40.005 to 40.490 shall be punished as a court-martial may direct, unless otherwise specifically prescribed.

3. Any person subject to sections 40.005 to 40.490 may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

(L. 1984 H.B. 1035 § 81)

Conspirators, deemed to have committed offense, when.

40.255. Any person subject to sections 40.005 to 40.490 who conspires with any other person to commit an offense under sections 40.005 to 40.490 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.

(L. 1984 H.B. 1035 § 82)

Advising or soliciting--desertion--mutiny--misbehavior before ahostile force--sedition--offense performed, punishment--notperformed, punishment.

40.260. 1. Any person subject to sections 40.005 to 40.490 who solicits or advises another or others to desert in violation of section 40.273 or mutiny in violation of section 40.307 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.

2. Any person subject to sections 40.005 to 40.490 who solicits or advises another or others to commit an act of misbehavior before a hostile force in violation of section 40.325 or sedition in violation of section 40.307 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.

(L. 1984 H.B. 1035 § 83)

False representation to procure enlistment--appointment--separation--court-martial proceedings.

40.265. Any person who:

(1) Procures his own enlistment or appointment in the state military forces by knowingly false representation or deliberate concealment as to the person's qualifications for that enlistment or appointment and receives pay or allowances thereunder; or

(2) Procures his own separation from the state military forces by knowingly false representation or deliberate concealment as to the person's eligibility for that separation shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 84)

Ineligible persons--enlisted, appointed, or separated from service,person effecting--court-martial.

40.270. Any person subject to sections 40.005 to 40.490 who effects an enlistment or appointment in or a separation from the state military forces of any person who is known to that person 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.

(L. 1984 H.B. 1035 § 85)

Desertion, defined--punishment by court-martial.

40.273. 1. Any member of the state military forces who:

(1) Without authority goes or remains absent from the member's unit, organization, or place of duty with intent to remain away therefrom permanently;

(2) Quits his unit, organization or place of duty with intent to avoid hazardous duty or to shirk important service; or

(3) 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

is guilty of desertion.

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

3. Any person found guilty of desertion or attempt to desert shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 86)

Absent from place of duty--court-martial.

40.276. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who, without authority:

(1) Fails to go to the person's appointed place of duty at the time prescribed;

(2) Goes from that place; or

(3) Absents himself or remains absent from the person's unit, organization, or place of duty at which he is required to be at the time prescribed.

(L. 1984 H.B. 1035 § 87)

Missing ship, aircraft or unit--court-martial.

40.278. Any person subject to sections 40.005 to 40.490 who through neglect or design misses the movement of a ship, aircraft, or unit with which the person is required in the course of duty to move shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 88)

Contemptuous words, used against certain officials--court-martial.

40.280. Any person subject to sections 40.005 to 40.490 who uses contemptuous words against the President of the United States, Vice President of the United States, Congress, Secretary of Defense, or a secretary of a department, the governor of the state of Missouri, the Missouri general assembly or the adjutant general of the state of Missouri, the governor or the legislature of any state, territory or other possession of the United States in which he is on duty or present shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 89)

Disrespect to superior commissioned officer--court-martial.

40.285. Any person subject to sections 40.005 to 40.490 who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 90)

Violence or willfully disobeying command of superior commissionedofficer.

40.290. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who:

(1) Strikes the person's superior commissioned officer or draws or lifts up any weapon or offers any violence against the superior commissioned officer while the officer is in the execution of his office; or

(2) Willfully disobeys a lawful command of his superior commissioned officer.

(L. 1984 H.B. 1035 § 91)

Strikes, assaults or willfully disobeys, warrant officer--noncommissioned officer--petty officer, court-martial, when.

40.295. Any warrant officer or enlisted member shall be punished as a court-martial may direct who:

(1) Strikes or assaults a warrant officer, noncommissioned officer or petty officer, while that officer is in the execution of his office;

(2) Willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or

(3) Treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office.

(L. 1984 H.B. 1035 § 92)

Orders--failure or dereliction in obeying--court-martial.

40.300. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who:

(1) Violates or fails to obey any lawful general order or regulation;

(2) Having knowledge of any other lawful order issued by a member of the state military forces which it is the person's duty to obey, fails to obey the order; or

(3) Is derelict in the performance of his duties.

(L. 1984 H.B. 1035 § 93)

Cruelty or maltreatment of persons subject to his orders--court-martial.

40.305. Any person subject to sections 40.005 to 40.490 who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 94)

Mutiny--sedition--attempted mutiny or sedition--failure to suppressor inform--offenses, court-martial.

40.307. 1. Any person subject to sections 40.005 to 40.490 who:

(1) With intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;

(2) With intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition;

(3) Fails to do his utmost to prevent and suppress a mutiny or sedition being committed in the person's presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which the person knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

2. A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 95)

Arrest, resists or breaks--escape from confinement--court-martial.

40.310. Any person subject to sections 40.005 to 40.490 who resists apprehension or breaks arrest or who escapes from physical custody, restraint, or confinement lawfully imposed shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 96)

Escape by neglect or improper release of prisoners--court-martial.

40.312. Any person subject to sections 40.005 to 40.490 who, without proper authority, releases any prisoner committed to his charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 97)

False apprehension, arrest, confinement--court-martial.

40.315. Any person subject to sections 40.005 to 40.490 who, except as provided by law or regulation, apprehends, arrests, restrains, or confines any person shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 98)

Delay in case--failure to enforce regulation of proceedings--court-martial.

40.320. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who:

(1) Is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under sections 40.005 to 40.490; or

(2) Knowingly and intentionally fails to enforce or comply with any provision of sections 40.005 to 40.490 regulating the proceedings before, during, or after trial of an accused.

(L. 1984 H.B. 1035 § 99)

Hostile force, in presence of, commits certainoffenses--court-martial.

40.325. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who before or in the presence of a hostile force:

(1) Runs away;

(2) Shamefully abandons, surrenders, or delivers up any command, unit, place or military property which it is the person's duty to defend;

(3) Through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;

(4) Casts away his arms or ammunition;

(5) Is guilty of cowardly conduct;

(6) Quits his place of duty to plunder or pillage;

(7) Causes false alarms in any command, unit, or place under control of the Armed Forces of the United States or the state military forces;

(8) Willfully fails to do his utmost to encounter, engage, capture, or destroy any hostile force, combatants, vessels, aircraft, or any other thing, which it is the person's duty so to encounter, engage, capture, or destroy; or

(9) Does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the Armed Forces belonging to the United States or their allies, to this state or to any other state, when engaged in battle or suppression of civil disorders.

(L. 1984 H.B. 1035 § 100)

Attempts to compel officer to surrender to enemy or to strikecolors without proper authority--court-martial.

40.328. Any person subject to sections 40.005 to 40.490 who compels or attempts to compel a commander of any place, vessel, aircraft, or other military property, or of any body of members of this state's or any other state's military forces to give it up to an enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 101)

Parole or countersign giving to person not entitled or givingimproperly to entitled person--court-martial.

40.330. Any person subject to sections 40.005 to 40.490 who discloses the parole or countersign to any person not entitled to receive it, or who gives to another who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to the person's knowledge, he was authorized and required to give, shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 102)

Forcing a safeguard, court-martial.

40.335. Any person subject to sections 40.005 to 40.490 who forces a safeguard shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 103)

Public property, duty to secure when taken from hostile forces--failure to turn over to proper authority--court-martial.

40.340. 1. All persons subject to sections 40.005 to 40.490 shall secure all public property taken from the hostile force for the service of the United States, or the state of Missouri, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.

2. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who:

(1) Fails to carry out the duties prescribed in subsection 1 of this section;

(2) Buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby that person receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself; or

(3) Engages in looting or pillaging.

(L. 1984 H.B. 1035 § 104)

Hostile forces, aid--court-martial.

40.350. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who:

(1) Aids, or attempts to aid the hostile force with arms, ammunition, supplies, money, or other things; or

(2) Without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the hostile force, either directly or indirectly.

(L. 1984 H.B. 1035 § 105)

Hostile forces, capture--conduct improper--court-martial.

40.355. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who, while in the hands of a hostile force in time of war or civil disturbance:

(1) For the purpose of securing favorable treatment by the person's captors, acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by a hostile force as civilian or military prisoners; or

(2) While in a position of authority over such persons maltreats them without justifiable cause.

(L. 1984 H.B. 1035 § 106)

Signs official documents with intent to deceive--court-martial.

40.360. Any person subject to sections 40.005 to 40.490 who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 107)

Military property--sells, neglects, damages, destroys, loses--court-martial.

40.365. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who, without proper authority:

(1) Sells or otherwise disposes of;

(2) Willfully or through neglect damages, destroys, or loses; or

(3) Willfully or through neglect suffers to be damaged, destroyed, sold, or wrongfully disposed any military property of the United States or of this state.

(L. 1984 H.B. 1035 § 108)

Property, not military--willfully, recklessly wastes or spoils--court-martial.

40.370. Any person subject to sections 40.005 to 40.490 who, while in a duty status, willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States or of this state shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 109)

Hazarding vessels of the United States or state, causing to behazarded--court-martial.

40.375. 1. Any person subject to sections 40.005 to 40.490 who willfully and wrongfully hazards or suffers to be hazarded any vessel of the Armed Forces of the United States or of the state military forces shall be punished as a court-martial may direct.

2. Any person subject to sections 40.005 to 40.490 who negligently hazards or suffers to be hazarded any vessel of the Armed Forces of the United States or of the state military forces shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 110)

Leaving post while on duty--use of drugs, drunkenness, sleeping onduty--court-martial.

40.380. Any person subject to sections 40.005 to 40.490 who is found drunk, under the influence of any intoxicant, narcotic, barbiturate or somnifacient or similar substance, on duty or sleeping upon his post, or who leaves that post before he is regularly relieved, shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 111)

Fighting--promoting a fight or duel, failure to report--court-martial.

40.385. Any person subject to sections 40.005 to 40.490 who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority, shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 112)

Avoiding work, duty or service--court-martial.

40.387. Any person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct who for the purpose of avoiding work, duty or service in the state military forces:

(1) Feigns illness, physical disablement, mental lapse or derangement; or

(2) Intentionally inflicts self-injury.

(L. 1984 H.B. 1035 § 113)

Riot or breach of the peace, causing or participating--court-martial.

40.390. Any person subject to sections 40.005 to 40.490 who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 114)

Provocative gestures or words, constituting a threat of violence--court-martial.

40.395. Any person subject to sections 40.005 to 40.490 who uses provoking or reproachful words or gestures constituting an immediate threat to violence toward any other person subject to sections 40.005 to 40.490 shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 115)

Perjury--giving a false oath or false testimony in a matter of inquiry--court-martial.

40.398. Any person subject to sections 40.005 to 40.490 who in a judicial proceeding or in a course of justice conducted under sections 40.005 to 40.495 and section 545.010 willfully and corruptly gives, upon a lawful oath or in any form allowed by law to be substituted for an oath, any false testimony material to the issue or matter of inquiry is guilty of perjury and shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 116, A.L. 1986 H.B. 1505)

False claims against United States or state--forgery orcounterfeiting signatures--property or money, failure to deliverwith intent to defraud--court-martial.

40.400. Any person subject to sections 40.005 to 40.490 shall, upon conviction, be punished as a court-martial may direct:

(1) Who, knowing it to be false or fraudulent:

(a) Makes any claim against the United States, this state, or any officer thereof; or

(b) Presents to any person in the civil or military service thereof, for approval or payment any claim against the United States, this state or any officer thereof;

(2) Who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States, this state, or any officer thereof:

(a) Makes or uses any writing or other paper knowing it to contain any false or fraudulent statements;

(b) Makes any oath to any fact or to any writing or other paper knowing the oath to be false; or

(c) Forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited; or

(3) Who, having charge, possession, custody, or control of any money, or other property of the United States or this state, furnished or intended for the Armed Forces of the United States or the state military forces, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which the person receives a certificate or receipt; or

(4) Who, being authorized to make or deliver any paper certifying the receipt of any property of the United States or this state, furnished or intended for the Armed Forces of the United States or the state military forces, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States or this state.

(L. 1984 H.B. 1035 § 117)

Larceny or wrongful appropriation of property--court-martial.

40.405. 1. Any person subject to sections 40.005 to 40.490 who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind:

(1) With intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny; or

(2) With intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation.

2. Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 118)

Officer's conduct, unbecoming to an officer and a gentleman--court-martial.

40.408. Any commissioned officer who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 119)

Neglecting or prejudicing discipline of the military--bringingdiscredit to state military services--exceptions, court-martial.

40.410. Though not specifically mentioned in sections 40.005 to 40.490, all disorders and neglects to the prejudice of good order and discipline in the state military forces, and all conduct of a nature to bring discredit upon the state military forces, of which persons subject to sections 40.005 to 40.490 may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. However, cognizance may not be taken of, and jurisdiction may not be extended to, the crimes of murder, manslaughter, rape, robbery, maiming, sodomy, arson, extortion, assault, burglary, housebreaking, or other offenses not included in this section, jurisdiction of which is reserved to civil courts.

(L. 1984 H.B. 1035 § 120)

Military property, purchasing or receiving in pawn or pledge--court-martial.

40.415. If any person shall knowingly and willfully purchase, or receive in pawn or pledge any military property of the state of Missouri or of the United States in use by the state of Missouri, he shall be punished as a court-martial may direct.

(L. 1984 H.B. 1035 § 121)

Courts of inquiry, duties, how convened--members of court--counsel, appointment--parties to inquiry, how determined,procedure--records.

40.420. 1. Courts of inquiry to investigate any matter may be convened by the governor or by any other person designated by the governor for that purpose, whether or not the persons involved have requested such an inquiry.

2. A court of inquiry consists of three or more commissioned officers. For each court of inquiry the convening authority shall also appoint counsel for the court.

3. Any person subject to sections 40.005 to 40.490 whose conduct is subject to inquiry shall be designated as a party. Any person subject to sections 40.005 to 40.490 or employed in the division of military affairs who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.

4. Members of a court of inquiry may be challenged by a party, but only for cause stated to the court.

5. The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath or affirmation to faithfully perform their duties.

6. Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial.

7. Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the convening authority.

8. Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.

(L. 1984 H.B. 1035 § 122)

Oaths, persons having authority to administer.

40.425. 1. The following members of the state military forces may administer oaths for the purposes of military administration, including military justice:

(1) The state judge advocate and all assistant state judge advocates;

(2) All summary courts-martial;

(3) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants;

(4) All staff judge advocates and legal officers;

(5) All other persons designated by law or regulation.

2. The following persons in the state military forces shall have authority to administer oaths necessary in the performance of their duties:

(1) The president, military judge, trial counsel, and assistant trial counsel for all general and special courts-martial;

(2) The president and the counsel for the court of any court of inquiry;

(3) All officers designated to take a deposition;

(4) All persons detailed to conduct an investigation;

(5) All other persons designated by law or regulation.

3. The signature without seal of any such person, together with the title of his office, is prima facie evidence of his authority.

(L. 1984 H.B. 1035 § 123)

Military justice--certain sections explained to enlisted members,when--complete text to be available on request.

40.430. Subsection 2 of section 40.005, sections 40.007, 40.020 to 40.040, 40.043, 40.090, 40.098, 40.126, 40.175, 40.234 to 40.415 and 40.430 to 40.440, as well as those required sections of the United States code of military justice, shall be carefully explained to every enlisted member at the time of the member's enlistment or transfer or induction into the state military forces or within thirty days thereafter. They shall also be explained to each unit of the state military forces as the adjutant general may direct. A complete text of sections 40.005 to 40.490 and of the regulations prescribed by the governor thereunder shall be made available to any member of the state military forces, upon the member's request, for his personal examination.

(L. 1984 H.B. 1035 § 124)

Complaints against commanding officer, procedure.

40.435. Any member of the state military forces who believes himself wronged by the member's commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the governor or adjutant general, who shall examine such complaint and take proper measures for redressing the wrong.

(L. 1984 H.B. 1035 § 125)

Property of person damaged or taken, board convened to investigate,procedure.

40.440. 1. Whenever complaint is made to any commanding officer that willful damage has been done to the property of any person or that the person's property has been wrongfully taken by members of the state military forces, the person may, subject to such regulations as the governor may prescribe, convene a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath or affirmation, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by the commanding officer shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized is conclusive, except as provided in subsection 3 of this section, on any disbursing officer for the payment by him to the injured parties of the damages so assessed and approved.

2. If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be paid to the injured parties from the funds of the units of the state military forces to which the offenders belonged.

3. Any person subject to sections 40.005 to 40.490 who is accused of causing willful damage to property has the right to be represented by counsel, to summon witnesses in the person's behalf, and to cross-examine those appearing against him. The accused has the right of appeal to the next higher commander.

(L. 1984 H.B. 1035 § 126)

Processes and sentences of courts-martial executed by civil officers,fees, how paid.

40.445. In the state military forces not in federal service, the processes and sentences of its courts-martial shall be executed by the civil officers prescribed by the laws of this state or regulations adopted under sections 40.005 to 40.490. Fees for serving processes provided for in sections 40.005 to 40.490 shall be the same as prescribed by law for similar processes of a civil nature, and shall upon proper vouchers being filed, be paid by the adjutant general in the usual manner.

(L. 1984 H.B. 1035 § 127)

Process or mandates, authority to issue.

40.450. 1. Military courts may issue any process or mandate necessary to carry into effect their powers. Such a court may issue subpoenas and subpoenas duces tecum and enforce by attachment attendance of witnesses and production of books and records, when it is within the state and the witnesses, books and records sought are also so located.

2. Process and mandates may be issued by summary courts-martial, provost courts, or the president or military judge of other military courts and may be directed to and may be executed by the marshals of the military court or any peace officer and shall be in such form as may be prescribed by regulations issued under sections 40.005 to 40.490.

3. All officers to whom process or mandates may be so directed shall execute them and make return of their acts thereunder according to the requirements of those documents.

(L. 1984 H.B. 1035 § 128)

Fines and costs imposed by military court, how paid.

40.455. Fines and costs imposed by a military court may be paid to it or to an officer executing its process. The amount of such a fine may be noted upon any state roll or account for pay of the delinquent and deducted from any pay or allowance due or thereafter to become due him, until the fine is liquidated. Any sum so deducted shall be turned into the military court which imposed the fine. Any officer collecting a fine or penalty imposed by a military court upon an officer or enlisted person shall pay it within thirty days to the judge advocate, who shall transmit the same to the adjutant general. The adjutant general shall, monthly, deposit all fines and penalties so received with the state treasurer, to be credited to the general revenue fund of the state.

(L. 1984 H.B. 1035 § 129)

Civilian officers to execute required duties, failure to perform,penalty.

40.460. The neglect or refusal of any sheriff, police officer, jail warden or magistrate to execute any process, or to make proper return of all fines and penalties collected, or to receive in custody any prisoner, shall be deemed a class C misdemeanor and shall subject the offender to a prosecution by the proper prosecuting attorney.

(L. 1984 H.B. 1035 § 130)

Actions against convening authority or member of court, prohibited,when.

40.465. No person may bring a civil or criminal action or proceeding against the convening authority or a member of a military court or officer or person acting under its authority or reviewing its proceedings because of the approval, imposition, or execution of any sentence or the imposition or collection of a fine or penalty, or the execution of any process or mandate of a military court.

(L. 1984 H.B. 1035 § 131)

Jurisdiction presumed, burden of proof.

40.470. The jurisdiction of the military courts and boards established by sections 40.005 to 40.490 shall be presumed and the burden of proof rests on any person seeking to oust those courts or boards of jurisdiction in any action or proceeding.

(L. 1984 H.B. 1035 § 132)

Governor's powers to delegate authority--exception.

40.475. The governor may delegate any authority vested in him under sections 40.005 to 40.490, and may provide for the subdelegation of any such authority, except the power given him by section 40.083.

(L. 1984 H.B. 1035 § 133)

Purpose of military laws.

40.480. Sections 40.005 to 40.490 shall be so construed as to effectuate their general purpose and, so far as practicable, to make the law uniform with the law of the United States, especially as embodied in the Uniform Code of Military Justice.

(L. 1984 H.B. 1035 § 134)

Expenses, per diems, transportation for military personnel andcivilians required to participate, how paid.

40.485. Military judges, military counsel and members of courts-martial and courts of inquiry shall be allowed transportation and per diem pay as per military grade for time actually employed in the duties assigned them. Transportation shall be furnished to all prosecutors, prisoners, witnesses, sheriffs and police officers to and from the place or places designated for the meetings of such courts. The per diem pay for civilian witnesses shall be the same as in civil courts of law and for military personnel the amount as provided by law and regulation. The fees of sheriffs for serving the processes provided for in sections 40.005 to 40.490 shall be the same as prescribed by law for similar processes of a civil nature and shall, upon proper vouchers being filed, be paid by the adjutant general in the usual manner.

(L. 1984 H.B. 1035 § 135)

Reemployment rights of persons ordered to active duty--attorneygeneral to enforce rights.

40.490. Members of the state military forces of this state who are ordered to active state duty by the governor shall, upon being relieved from such duty, be entitled to the same reemployment rights provided by Title 38 of the United States Code, the Revised Statutes of Missouri, and all amendments thereto. The attorney general shall enforce the reemployment rights contained in this section for members of the state military forces who are ordered to active state duty by the governor.

(L. 1984 H.B. 1035 § 136, A.L. 1995 S.B. 207)

Severability of sections.

40.495. Sections 40.005 to 40.490 and every part thereof are hereby declared to be independent sections or part of a section, and if any section, subsection, sentence, clause, or phrase of sections 40.005 to 40.490 shall for any reason be held unconstitutional, the validity of the remaining sections, subsections, sentences, clauses, or phrases shall not be affected thereby.

(L. 1984 H.B. 1035 § 137)


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