39A-5 - Utah Code of Military Justice

Title 39A > 39A-5

Sections (65)

General Provisions

39A-5-101 - Utah Code of Military Justice.

The “Utah Code of Military Justice” may be abbreviated as the “UtCMJ” and applies to all individuals subject to this title.

39A-5-102 - Definitions.

As used in this chapter: 39A-5-102(1) “Accuser” means an individual who:

signs and swears to charges; directs that charges nominally be signed and sworn to by another; or any other individual who has an interest other than an official interest in the prosecution of the accused. 39A-5-102(2) “Apprehend” means taking an individual into custody by competent authority, with or without a warrant. 39A-5-102(3) “Arrest” means restraining an individual by an order, not imposed as a punishment for an offense, directing the individual to remain within a specified area. 39A-5-102(4) “Commanding officer” means both a commissioned officer and a warrant officer designated as a commander. 39A-5-102(5) “Commissioned officer” includes a commissioned warrant officer. 39A-5-102(6) “Confinement” means the physical restraint of an individual. 39A-5-102(7) “Convening authority” means the governor or the adjutant general. 39A-5-102(8) “Duty status other than state active duty” means any other type of duty, and includes going to and returning from the duty. 39A-5-102(9) “Enlisted member” means an individual in an enlisted grade. 39A-5-102(10) “Grade” means a step or degree in a graduated scale of office or military rank, established and designated as a grade by law or regulation. 39A-5-102(11) “Legal officer” means any commissioned officer of the National Guard designated to perform legal duties for a command. 39A-5-102(12) “Major command” or “MACOM” means a major subdivision of the National Guard. 39A-5-102(13) “Military” means any or all of the armed forces of the United States. 39A-5-102(14) “Military court” means a court-martial, a court of inquiry, or a provost court. 39A-5-102(15) “Military judge” means a qualified staff judge advocate officer of a military court detailed under Section 39A-5-206. 39A-5-102(16) “National Guard” includes part-time and full-time active guard and reserve (AGR), and the Utah State Defense Force when called to active duty by the governor. 39A-5-102(17) “Officer” means a commissioned or warrant officer. 39A-5-102(18) “Rank” means the order of precedence among members of the armed forces. 39A-5-102(19) “State active duty” means full-time duty in the active military service of the state under an order of the governor, issued pursuant to the governor’s authority, and includes going to and returning from duty. 39A-5-102(20) “State judge advocate” or “SJA” means the commissioned judge advocate general’s corps officer responsible for supervising the delivery of legal services in the National Guard. 39A-5-102(21) “State staff judge advocate” or “SSJA” means the commissioned judge advocate general’s corps officer appointed as the senior legal officer for the National Guard. 39A-5-102(22) “Superior commissioned officer” means a commissioned officer superior to another in rank or command. 39A-5-102(23) “Unit” means any regularly organized command of the National Guard.

39A-5-103 - State staff judge advocate — Appointment — Qualifications — Duties — Assistants.

39A-5-103(1) The adjutant general shall appoint a state staff judge advocate.The state staff judge advocate appointed under Subsection (1)(a) shall be:an officer of the National Guard;a member of the Utah State Bar; anddesignated as a state staff judge advocate officer.The state staff judge advocate appointed under Subsection (1)(a):is the senior legal officer for the National Guard and a member of the adjutant general’s special staff; andshall act as the primary legal advisor to the adjutant general on all matters involving military justice. 39A-5-103(2) The adjutant general may appoint a state judge advocate.The state judge advocate appointed under Subsection (2)(a) shall be:an officer of the National Guard;a member of the Utah State Bar; anddesignated as a staff judge advocate officer.The state judge advocate appointed under Subsection (2)(a) is:the principal military legal advisor; andshall, in connection with rendering legal advice to the adjutant general, prepare pretrial advice, a post-trial review, and act, in concert with the state staff judge advocate, as legal advisor to the adjutant general on all matters involving military justice. 39A-5-103(3) The adjutant general may appoint staff judge advocates for the individual services of the National Guard.A service staff judge advocate appointed under Subsection (3)(a) shall be:an officer of the National Guard;a member of the Utah State Bar; anddesignated as a staff judge advocate officer.A service staff judge advocate appointed under Subsection (3)(a):is responsible for the provision of military justice legal advice to the service assistant adjutant general of the branch state staff judge advocate; andshall provide oversight to subordinate assistant staff judge advocates. 39A-5-103(4) The adjutant general may appoint assistant state judge advocates.An assistant state judge advocate appointed under Subsection (4)(a) shall be:an officer of the National Guard;a member of the Utah State Bar; anddesignated as a staff judge advocate officer. 39A-5-103(5) The state judge advocate or service staff judge advocate shall make frequent inspections of military units throughout the state to supervise the administration of military justice.The duty described in Subsection (5)(a) may be delegated to an assistant state judge advocate. 39A-5-103(6) The convening authority shall review directly with the convening authority’s staff judge advocate all matters relating to the administration of military justice and administrative actions.The assistant state judge advocate or legal officer of any command may communicate directly with the assistant state judge advocate or legal officer of a superior or subordinate command, or with the state staff judge advocate. 39A-5-103(7) An individual who has acted as a 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, may not subsequently act as assistant state judge advocate, state judge advocate, state staff judge advocate, service staff judge advocate, or legal officer to any reviewing authority upon the same case.

39A-5-104 - Individuals subject to chapter — Jurisdiction over offenses.

39A-5-104(1) The following individuals are subject to this chapter:

all members of the National Guard, including full-time members serving under Title 32, United States Code; and all other individuals lawfully ordered to duty in or with the National Guard or the Utah State Defense Force, from the date required by the terms of the order or other directive. 39A-5-104(2) If there is a military activation by the federal government, all activated individuals who would otherwise be under the jurisdiction of this chapter are subject to concurrent jurisdiction under federal and state law. Individuals under this subsection may only be tried for offenses occurring during activation and after release from federal service, while within the period of the applicable statute of limitations.

39A-5-105 - Application of chapter in and outside of the state — Military courts held outside the state.

39A-5-105(1) This chapter applies to all individuals:

subject to this chapter within the state; otherwise subject to this chapter while serving outside the state; and while going to and returning from the service outside the state. 39A-5-105(2) Military courts may be convened and held in units of the National Guard while those units are serving without the state, with the same jurisdiction and powers as to individuals subject to this chapter as if the proceedings were held within the state. Offenses committed without the state may be tried and punished either within or without the state, as military necessity dictates. 39A-5-105(3) Nothing in this chapter limits a commander’s authority to use adverse administrative action to address misconduct by a member, regardless of the member’s status at the time of the misconduct.

39A-5-106 - Offenses against the state by individual not subject to chapter.

An individual not subject to this chapter is guilty of an offense against the state if the individual willfully neglects or refuses to appear, refuses to qualify as a witness or to testify, or refuses to produce any evidence which the individual may have been legally subpoenaed to produce, after the individual has been: 39A-5-106(1) 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 the court; and 39A-5-106(2) paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the district courts of the state.

39A-5-107 - Apprehension.

39A-5-107(1) An individual authorized under this chapter or rules promulgated pursuant to this chapter to apprehend individuals subject to this chapter, any provost marshal of a military court appointed under this chapter, and any peace officer authorized by law, may apprehend individuals subject to this chapter upon probable cause to believe that an offense has been committed and the individual to be apprehended committed the offense. 39A-5-107(2) Commissioned officers, warrant officers, and noncommissioned officers may quell disorderly conduct among individuals subject to this chapter and may apprehend those individuals who are taking part.

39A-5-108 - Arrest.

39A-5-108(1) An enlisted service member may be ordered into arrest or confinement by any commanding officer by an order, oral or written, delivered in person or through individuals subject to this chapter, or through an individual authorized by this chapter to apprehend individuals. 39A-5-108(2) A commanding officer may authorize warrant officers or noncommissioned officers to order enlisted members of his or her command or subject to his or her authority into arrest or confinement. 39A-5-108(3) A commissioned officer or warrant officer may be ordered apprehended, or ordered into arrest or confinement, only by a commanding officer to whose authority the commissioned officer or warrant officer is subject, and only by an order, oral or written, delivered in person or by another commissioned officer. The authority to order the officer apprehended or into arrest or confinement may not be delegated. 39A-5-108(4) A service member may not be apprehended or placed under arrest or confinement except upon probable cause. 39A-5-108(5) This section does not limit an individual authorized to apprehend offenders in securing the custody of an alleged offender until the proper authority may be notified.

39A-5-109 - Fraudulently obtained discharge — Desertion — Limitations — Tolling of time limits.

39A-5-109(1) An individual discharged from the National Guard who is later charged with having fraudulently obtained the discharge is subject to trial by a military court on that charge. 39A-5-109(2) After apprehension, the individual is subject to this chapter while in military custody for trial. Upon conviction of the charge the individual is subject to trial for all offenses under this chapter committed prior to the fraudulent discharge. 39A-5-109(3) An individual who has deserted from a military unit, which would subject the individual to the jurisdiction of this chapter, is not relieved from the jurisdiction of this chapter due to a separation from any later period of service. 39A-5-109(4) An individual charged with desertion or absence without leave shall be tried and punished within four years after the preferral of charges. 39A-5-109(5) Except under Subsection (4), an individual charged with any offense may not be tried by a military court or punished under Section 39A-5-303 if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising jurisdiction as a military court convening authority. 39A-5-109(6) Periods when the accused was outside the state’s jurisdiction or in the custody of civilian authorities are excluded in computing limitations of time under this section.

39A-5-110 - Confinement.

39A-5-110(1) An individual subject to this chapter, who is charged with an offense under this chapter, may be ordered into arrest or confinement, as circumstances require. When an individual subject to this chapter is placed into arrest or confinement prior to trial, action shall be taken immediately to notify the individual of the specific offense charged, and to either try the individual, or dismiss the charges and release the individual. 39A-5-110(2) Confinement before, during, or after trial by a military court shall be ordered by a field grade or general officer and may be in a penal institution determined by the governor or the adjutant general.

39A-5-111 - Parties under obligation to keep a prisoner — Reporting.

39A-5-111(1) A provost marshal, sheriff, or officer of a city or county jail or penal institution designated under Section 39A-5-110, may not refuse to receive or keep any prisoner if the committing officer provides a signed statement indicating the offense charged against the prisoner. 39A-5-111(2) Any party under Subsection (1) charged with keeping a prisoner shall within 24 hours after commitment report to the commanding officer of the prisoner the name of the prisoner, the nature of the offense charged against him, and the name of the individual who ordered or authorized the commitment.

39A-5-112 - Individual confined prior to trial — Punishment limitations.

39A-5-112(1) Subject to Section 39A-5-110, an individual in confinement prior to trial may not be subjected to punishment or penalty other than arrest or confinement while the charges are pending. 39A-5-112(2) The arrest or confinement imposed on a prisoner may not be more rigorous than necessary to ensure the prisoner’s presence. However, the prisoner may be:

subjected to minor punishment during that period for discipline violations; and required to perform labor as necessary for the policing and sanitation of the prisoner’s living conditions, immediately adjacent areas, or as otherwise designated by regulations governing the housing of a prisoner.

39A-5-113 - Individual accused of offense against civilian — Sentences of military and civilian courts.

39A-5-113(1) A service member on duty and subject to this chapter who is accused of an offense against a civilian individual may be delivered, upon request, to a civilian authority for judicial proceedings. 39A-5-113(2) If an individual under sentence imposed by a military court is delivered to a civilian authority under this section, and the individual is convicted in a civilian court, the execution of the sentence of the military court is interrupted. After the individual has completed the sentence imposed by the civilian court, upon request of military authority, the individual shall be returned to military custody for completion of the military court sentence.

39A-5-114 - Charges and specifications — Contents — Notification of accused.

39A-5-114(1) Charges and specifications shall be signed by a member subject to this chapter under oath before an individual authorized to administer oaths and shall state that:

the individual signing has personal knowledge of, or has investigated, the matters set forth in the document; and the matters set forth are true to the best of the individual’s knowledge and belief. 39A-5-114(2) Upon the preferring of charges, the appropriate authority shall take action immediately to determine what disposition should be made in the interest of justice and discipline. The accused shall be informed of the charges against him or her as soon as practicable.

39A-5-114.5 - Use of force in defense of equipment and personnel of the National Guard or military.

39A-5-114.5(1) As used in this section, “deadly force” means the same as that term is defined Section 76-2-404. 39A-5-114.5(2) A military service member or a member of the National Guard may use force, including deadly force, to defend military or National Guard equipment or personnel, if:the member is on official duty to defend equipment or personnel of the military or National Guard; andthe use of force is used in accordance with the military or National Guard regulations and doctrine regarding the appropriate use of force in the defense of equipment or personnel. 39A-5-114.5(3) Before a military service member or a member of the National Guard is assigned to official duty to defend equipment or personnel, the servicing staff judge advocate shall provide a briefing to the member on the rules for the use of force under this section and in accordance with military or National Guard regulations and doctrine.A military service member or a member of the National Guard who does not receive the briefing described in Subsection (3)(a) may still claim the privilege described in Subsection (2) if the member is not at fault for not receiving the briefing.

39A-5-115 - Individual charged — Limits on evidence obtained from other individuals.

39A-5-115(1) An individual subject to this chapter may not:

compel any individual to incriminate himself or herself or to answer any question, the answer to which may tend to incriminate the individual; interrogate, or request any statement from an accused or an individual suspected of an offense, without first: informing the individual of the nature of the accusation; and advising the individual that a statement is not required regarding the offense of which the individual is accused or suspected, and that any statement may be used as evidence against the individual in a trial by military court; and compel any individual to make a statement or produce evidence before any military court, if the statement or evidence is not material to the issue before the court and may tend to degrade the individual. 39A-5-115(2) A statement obtained from any individual in violation of this section, or through the use of coercion, unlawful influence, or unlawful inducement may not be received in evidence against the individual in a trial by a military court.

39A-5-116 - Charges to be forwarded to governor or adjutant general.

When an individual is held for trial by military court, the commanding officer shall forward the charges, together with the investigation and related papers, to the governor or the adjutant general within five working days, excluding holidays, after the accused is ordered into arrest or confinement.

39A-5-117 - Review of charge by SJA — Corrections to charges.

39A-5-117(1) Before directing the trial of any charge by a military court, the convening authority shall refer the charge to the SJA for consideration and advice. The convening authority may not refer a charge to a military court for trial unless he or she has found that the charge alleges an offense under this chapter and is warranted by sufficient evidence, as indicated in the report of the investigation. 39A-5-117(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 changes in the charges and specifications as necessary may be made to conform to the evidence.

39A-5-118 - Service of charges on accused.

39A-5-118(1) The trial counsel to whom charges are referred for trial shall cause to be served upon the accused a copy of the charges to be tried. 39A-5-118(2) An individual may not, against his or her objection, be brought to trial or be required to participate in a session called by the military judge under Section 39A-5-216, in a military court case, within five days after the service of charges.

39A-5-119 - Chapter interpretation — Federal law governs.

39A-5-119(1) Federal laws and regulations, forms, precedents, and usages relating to and governing the armed forces of the United States and the National Guard not inconsistent with the constitution and laws of this state or with a rule or regulation adopted pursuant to Section 39A-3-102, apply to and govern the National Guard of this state, including all members on active duty within the state as active duty guard or reserve personnel under U.S.C.A. Title 32, National Guard. 39A-5-119(2) The Uniform Code of Military Justice, 10 U.S.C.A. 47, including regulations, manuals, forms, precedents, and usages implementing, interpreting and complementing the code, is adopted for use by the National Guard of this state and applies as long as it is not inconsistent with:

the constitution and laws of this state, including the regulations, manuals, forms, precedents, and usages implementing, interpreting, and complementing the constitution and laws of this state; or a rule or regulation adopted pursuant to Section 39A-3-102, to govern the National Guard of this state, including all members on active duty within the state as active duty guard or reserve personnel under U.S.C.A. Title 32, National Guard, when the members are serving other than in a federal capacity under U.S.C.A. Title 10.

Military Courts

39A-5-201 - Military courts.

This part sets the requirements and procedures for the conduct of military courts of the Utah National Guard.

39A-5-202 - Composition — Convening authority — Responsibilities.

39A-5-202(1) Within the National Guard while not in federal service, there is created a military court to hear matters designated under the Utah Code of Military Justice. 39A-5-202(2) The governor or the adjutant general of the state is the convening authority for any military court in the state and upon receipt of charges may:

dismiss any charges; forward charges to a subordinate commander for disposition; or refer charges to a military court for trial. 39A-5-202(3) A military court shall be convened in accordance with this part. 39A-5-202(4) The court shall be composed of:

a military judge and not fewer than three panel members; or a military judge, if before the court is assembled, the accused, knowing the identity of the military judge and after consultation with his defense counsel, requests in writing a court composed only of a military judge, and the military judge approves the request. 39A-5-202(5) The convening authority of a military court or court of inquiry:

shall detail or employ qualified court reporters to record the proceedings of and testimony taken by the court; and may detail or employ interpreters, as necessary.

39A-5-203 - Jurisdiction — Punishments.

39A-5-203(1) A military court in this state has jurisdiction to try individuals subject to this chapter for any offense punishable by this chapter. The military court may, under limitations the governor may prescribe, and under applicable state and federal regulations governing punishment, impose any punishment described in Section 39A-5-302 and not prohibited by this chapter or state law, including the issuance of a bad conduct discharge, when the court is in session to consider a penalty. 39A-5-203(2) Each major command component of the National Guard has military court jurisdiction over all individuals subject to this chapter. The exercise of this jurisdiction by one command component over members of another shall be in accordance with regulations prescribed by the governor. 39A-5-203(3) Members of the Utah National Guard in federal service are subject to the federal Uniform Code of Military Justice and all federal and state laws pertaining to them, until released back to state control. 39A-5-203(4) The jurisdiction of the courts established by this chapter is presumed, and the burden of proof shall rest on any individual attacking the court’s jurisdiction in any action or proceeding.

39A-5-204 - Authority — Processes and mandates.

39A-5-204(1) A military court may issue all processes and mandates necessary to carry into effect the court’s authority. 39A-5-204(2) Processes and mandates:

may be issued by a military court judge or the president of other military courts; may be directed to and executed by the military police assigned to the court, or any peace officer; and shall be in a form prescribed by regulations issued under this chapter. 39A-5-204(3) All officers to whom processes or mandates are directed shall execute and return all actions in accordance with the requirements of the documents. Except as otherwise provided in this chapter, an officer may not demand or require payment of any fee or charge for receiving, executing, or returning a process or mandate, or for any service in connection with either document.

39A-5-205 - Execution of military court processes and sentences.

The processes and sentences of the National Guard in its military court, when the guard is not in federal service, shall be executed by the civil officers prescribed by state law.

39A-5-206 - Military judge — Qualifications — Designation for detail.

39A-5-206(1) The convening authority of a military court shall, subject to regulations promulgated by the governor, detail a military judge, as designated by the state judge advocate, to preside over each open session of the court. 39A-5-206(2) A military judge shall be:

a commissioned officer; a member of the Utah State Bar; a member of the bar of a federal court; and certified as qualified for duty by the state judge advocate. 39A-5-206(3) Unless the military court is convened by the governor, neither the adjutant general nor the adjutant general’s staff may prepare or review any report concerning the effectiveness, fitness, or efficiency of the detailed military judge that relates to the judge’s performance of duty as a military judge. 39A-5-206(4) An individual is not eligible to act as a military judge in a case if the individual:

is the accuser; is a witness in the case; has acted as investigating officer; or is a counsel in the same case. 39A-5-206(5) The military judge of a court may not:

consult with the members of the court, except in the presence of the accused, trial counsel, and defense counsel; or vote with the members of the court.

39A-5-207 - Authority of military court judges — Payment of witnesses.

39A-5-207(1) Judges of military courts may:

issue a warrant for the arrest of an accused individual who, having been served with a warrant and a copy of the charges, disobeys a written order by the convening authority to appear before the court; issue subpoenas and subpoenas duces tecum, and enforce by attachment the attendance of witnesses and the production of books and papers; sentence for a refusal to be sworn or to answer as provided in actions before civil courts; and issue process to compel witnesses to appear and testify, and compel the production of other evidence in any county within the state. 39A-5-207(2) Witnesses shall be paid in the same manner as in district courts.

39A-5-208 - Individuals who may serve on a military court.

39A-5-208(1) A commissioned officer off or on duty with the National Guard may serve on a military court for the trial of any individual brought before the court for trial. 39A-5-208(2) A warrant officer off or on duty with the National Guard may serve on a military court for the trial of any individual, other than a superior commissioned officer, who is brought before the court for trial. 39A-5-208(3) An enlisted member of the National Guard who is not a member of the same unit as the accused may serve on a military court for the trial of any enlisted member brought before the court for trial. However, an enlisted member may serve as a member of a court only if before the conclusion of a session called by the court under Section 39A-5-216, or in the absence of the session, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted members serve on the court. If the request is made under Subsection (3)(b), the accused may not be tried by the military court when enlisted members comprise less than 1/2 of the total membership of the court, unless eligible members cannot be obtained on account of physical conditions or military exigencies. If eligible members cannot be obtained, the court may be assembled and trial held without them, but the convening authority shall make a detailed written explanation of why eligible members could not be obtained. This statement shall be appended to the court record. 39A-5-208(4) An individual subject to this chapter may be tried by a military court, but no member of the court may be junior to the individual in rank or grade. When a military court is convened, the convening authority shall detail as members of the court individuals who are best qualified for the duty by age, education, training, experience, length of service, and judicial temperament. A member is not eligible to serve as a member of a military court if the member: is the accuser in the case; is a witness in the case; has acted as investigating officer in the case; or has acted as counsel in the case. 39A-5-208(5) An action or proceeding may not be prosecuted or maintained against a convening authority, member of a military court, or individual acting under the court’s authority or reviewing the court’s proceedings because of:

the imposition, approval, or execution of any sentence; the imposition or collection of a fine or penalty; or the execution of any warrant, writ, execution, process, or mandate of a military court.

39A-5-209 - Military court findings — Prohibition of censuring or influencing court actions — Military court member’s performance.

39A-5-209(1) The court or any panel member, military judge, or counsel of the court may not be censured, reprimanded, or admonished by a convening authority, commanding officer, or staff officer with respect to the findings or sentence adjudged by the court, or any other function carried out in the proceeding. 39A-5-209(2) An individual subject to this chapter may not attempt to coerce, or by any unauthorized means influence the action of:

the military court or any other military tribunal or any member of a military tribunal arriving at the findings or sentence in any case; or any convening, approving, or reviewing authority with respect to any judicial acts. 39A-5-209(3) Subsection (2) does not apply to:

general instructional or informational courses in military justice, if the courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of a military court; or statements and instructions given in open court by the military judge, the president of a military court, or counsel. 39A-5-209(4) In preparing an effectiveness, efficiency, or fitness report, or any other report or document used in whole or in part for determining whether a member of the National Guard is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the National Guard, or in determining whether a member should be retained in an active status, an individual subject to this chapter may not:

consider or evaluate the performance of duty of any member of a military court; or give a less favorable rating or evaluation of any member of the National Guard because of the zeal with which the member, as counsel, represented any accused before a military court or before any other proceeding authorized by this chapter.

39A-5-210 - Prosecutions in state name — Right to defense trial counsel.

39A-5-210(1) The trial counsel of a military court prosecutes in the name of the state, and shall prepare the record of the proceedings under the direction of the court. 39A-5-210(2) The accused has the right to be represented before a military court by civilian counsel if provided by him at no expense to the state, or by military counsel of his or her own selection if reasonably available. If the accused has retained civilian counsel, the defense counsel and any assistant defense counsel who were detailed shall act as the associate counsel to the civilian counsel if the accused desires. Otherwise, detailed counsel shall be excused by the military judge. 39A-5-210(3) In a court proceeding resulting in a conviction, the defense counsel may forward for attachment to the record of proceedings a brief of matters that should be considered on behalf of the accused on review, including any objection to the contents of the record. 39A-5-210(4) An assistant trial counsel of a military court may, under the direction of the trial counsel, or as trial counsel when he is so qualified, perform any duty imposed by law, regulation, or the custom of the service on the trial counsel of the court. An assistant trial counsel of a military court may perform any duty of the trial counsel. 39A-5-210(5) An assistant defense counsel of a military court may, under the direction of the defense counsel or when he is qualified to be the defense counsel, perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.

39A-5-211 - Court procedures — Regulations by governor.

39A-5-211(1) In cases subject to or brought under this chapter, before military courts, or before other military tribunals, the procedure, including elements of proof, may be prescribed by the governor. 39A-5-211(2) The governor shall promulgate regulations that apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the courts of the state. However, the regulations may not be contrary to or inconsistent with this chapter.

39A-5-212 - Military court — Oath or affirmation.

39A-5-212(1) Before performing their respective duties, an oath or affirmation to perform all duties faithfully shall be administered to:

military judges; interpreters; members of the court; the trial counsel; the assistant trial counsel; the defense counsel; the assistant defense counsel; and court reporters. 39A-5-212(2) The governor shall prescribe by regulation: the oath or affirmation; the time and place of taking the oath or affirmation; the manner of recording the taking; and whether the oath is to be taken for all cases in which these duties are to be performed or for a specific case. The regulations may provide that an oath or affirmation to faithfully perform any of the duties under Subsection (1) except that of court reporter, be taken at any time by any judge advocate, legal officer, or other individual certified as qualified or competent for the duty. The regulations may also provide that an oath under this subsection need not again be taken at the time the judge advocate, legal officer, or other individual having taken an oath under this section is detailed to that duty. 39A-5-212(3) Each witness in a military court shall be examined under oath or affirmation.

39A-5-213 - Military court — Challenge for cause — Peremptory challenge.

39A-5-213(1) The military judge and members of a military court may be challenged by the accused or the trial counsel for cause stated to the court. The military judge of the court shall determine the relevancy and validity of challenges for cause, and may not receive a challenge to more than one member at a time. Challenges by the trial counsel shall be presented and decided before those by the accused are offered, unless the judge determines otherwise. 39A-5-213(2) Each accused and the trial counsel are entitled to one peremptory challenge, but the military judge may not be challenged except for cause. The military judge in his or her discretion may grant additional peremptory challenges where appropriate.

39A-5-214 - Military court members — When excused — Trial procedure.

39A-5-214(1) A member of a military court may not be absent or excused after the court has been assembled for the trial of the accused, except because of physical disability, the result of a challenge, or for good cause by order of the convening authority. 39A-5-214(2) When a military court other than a court composed solely of a military judge is reduced to fewer than four members, the trial may not proceed unless the convening authority details new members sufficient to provide not fewer than four members. When the new members have been sworn, the trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and the counsel for the prosecution and defense.

39A-5-215 - Military court — Continuance.

The military judge may, upon good cause shown, grant a continuance to trial or defense counsel for a stated period of time, when a continuance appears to be just.

39A-5-216 - Military court — Session — Procedures.

39A-5-216(1) After the service of charges has been referred for trial to a military court composed of a military judge and panel members, the military judge may, subject to Section 39A-5-118, call the court into session. The session shall be:

made a part of the record; and in the presence of the accused, the defense counsel, and the trial counsel. 39A-5-216(2) The session may be conducted without the presence of the panel members. 39A-5-216(3) A session under this subsection may be conducted for the following purposes:

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; hearing and ruling upon any matter a military judge under this chapter may rule upon, whether or not the matter is appropriate for later consideration or decision by the members of the court; holding the arraignment and receiving the pleas of the accused, if permitted by regulations promulgated by the governor or adjutant general; or performing any other procedural function that may be performed by the military judge under this chapter or under rules promulgated under Section 39A-5-219 and which does not require the presence of the members of the court. 39A-5-216(4) When the members of a military court deliberate or vote, only the members may be present. 39A-5-216(5) 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, and the military judge.

39A-5-217 - Plea of not guilty — Accepted — Withdrawn.

39A-5-217(1) A plea of not guilty shall be entered in the record, and the court shall proceed as though the accused pleaded not guilty, if the accused:

after arraignment, makes an irregular pleading; after a plea of guilty. raises a matter inconsistent with the plea; has apparently entered the plea of guilty improvidently or through lack of understanding of its meaning and effect; or fails or refuses to plead. 39A-5-217(2) A plea of guilty by the accused may not be accepted to any charge or specification alleging an offense for which a determinate term of one year confinement may be imposed. If a plea of guilty has been accepted by the military judge, a finding of guilty, if permitted by regulations promulgated by the governor, shall be entered immediately without vote and constitutes the finding of the court. If the plea of guilty is withdrawn prior to announcement of the sentence, the proceedings shall continue as though the accused pleaded not guilty.

39A-5-218 - Contempt — Penalty.

39A-5-218(1) A military court may punish for contempt any individual who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any disorderly conduct. 39A-5-218(2) The punishment may not exceed confinement for three days in the county jail of the county where the proceedings are held, or a fine of $200, or both.

39A-5-219 - Obtaining evidence and witnesses — Procedure.

The trial and defense counsel, and the military court, have equal opportunity to obtain witnesses and other evidence under: 39A-5-219(1) regulations promulgated by the governor or adjutant general; 39A-5-219(2) the applicable rules of civil and criminal procedure; or 39A-5-219(3) state or federal law.

39A-5-220 - Depositions — Procedure.

39A-5-220(1) After charges have been signed under Section 39A-5-114, any party may take oral or written depositions unless the military judge hearing the case, or if the case is not being heard, an authority competent to convene a military court for the trial of the charges prohibits the depositions for good cause. 39A-5-220(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. 39A-5-220(3) Depositions may be taken before and authenticated by any military or civil officer authorized to administer oaths under state law or the law of the jurisdiction where the deposition is to be taken. 39A-5-220(4) An authenticated deposition, taken upon reasonable notice to the other parties, may be read in evidence, to the extent it is admissible under the rules of evidence, before any military court or any proceeding before a court of inquiry, if:

the witness resides or is beyond the state in which the military court or court of inquiry is ordered to sit, or beyond the distance of 100 miles from the location of the trial or hearing; the witness due to death, age, illness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the location of the trial or hearing; the present location of the witness is unknown; or the deposition was taken in the physical presence of the accused.

39A-5-221 - Sworn testimony — Read in evidence.

39A-5-221(1) The sworn testimony of a case which is contained in the authenticated record of proceedings of a court of inquiry, of an individual whose oral testimony cannot be obtained, may be read in evidence by any party before a military court if:

the sworn testimony is otherwise admissible under the rules of evidence; the accused was a party before the court of inquiry; the same issue was involved or the accused consents to the introduction of the evidence; or the accused was physically present when the testimony was taken. 39A-5-221(2) The testimony may be read in evidence:

before a court of inquiry or a military board; or by the defense only in cases extending to the dismissal of a commissioned officer.

39A-5-222 - Voting by military court members — Procedure — Presumption of innocence — Reasonable doubt — Burden of proof.

39A-5-222(1) The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. A ruling made by the military judge upon a question of law or an interlocutory question, other than the factual issue of mental responsibility of the accused, is final and is the ruling of the court. However, the military judge may change the ruling at any time during the trial. 39A-5-222(2) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the court as to the elements of the offense and charge the court that:

the accused is presumed innocent until guilt is established by legal and competent evidence beyond reasonable doubt; if there is reasonable doubt as to the guilt of the accused, the doubt shall be resolved in favor of the accused, and the accused shall be acquitted; if there is a reasonable doubt as to the degree of guilt, the finding shall be in a lower degree, as to which there is no reasonable doubt; and the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the state. 39A-5-222(3) Voting by members of a military court on the findings and on the sentence, and upon questions of challenge, are by secret written ballot. The junior member of the court counts the votes. The count shall be reviewed by the president, who shall immediately announce the result of the ballot to the members of the court. 39A-5-222(4) If the court is composed of a military judge only, the military judge determines all questions of law and fact arising during the proceedings. If the accused is convicted, the judge imposes the sentence. The military judge of a court shall make a general finding and shall, on request, find the facts specially. If an opinion or memorandum of decision is filed, it is sufficient if the findings of fact are included.

39A-5-223 - Vote necessary for conviction or other questions — Tie votes.

39A-5-223(1) The accused may not be convicted of any offense except by a unanimous verdict of the members of the court present at the time the vote is taken. 39A-5-223(2) All other questions decided by the members of a military court are determined by a majority vote. A determination to reconsider a finding of guilty, to reconsider a sentence, or to decrease a sentence, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. 39A-5-223(3) A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused’s sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.

39A-5-224 - Findings — Background check prior to sentencing.

39A-5-224(1) A court shall announce its findings and sentence to the parties as soon as determined. 39A-5-224(2) The court panel may defer sentencing pending an investigation of the background of the accused to determine a just and appropriate sentence.

39A-5-225 - Finding or sentence — Error — Review.

39A-5-225(1) A finding or sentence of a military court may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused. 39A-5-225(2) A reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm that portion of the finding that includes a lesser included offense.

39A-5-226 - Military court records.

39A-5-226(1) Each military court shall maintain a separate record of the proceedings in each case brought before it. Each record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge due to death, disability, or absence, it shall be authenticated by the signature of the trial counsel. If the trial counsel is unable to authenticate due to death, disability, or absence, a member of the court panel shall authenticate the record by signature. In a court of only a military judge, the record shall be authenticated by the court reporter under the same conditions that a member of a court would authenticate under this section: if the proceedings have resulted in an acquittal of all charges and specifications; or if the proceedings are not affecting a general or flag officer, for a sentence that does not include a discharge and is not in excess of that which may be prescribed by regulations of the governor. 39A-5-226(2) A copy of the record of the proceedings of each court shall be given to the accused as soon as it is authenticated. 39A-5-226(3) The expense in preparing and transmitting the record shall be by regulations prescribed by the governor or the adjutant general.

39A-5-227 - Trial record forwarded to convening authority.

After a trial by a military court, the record shall be forwarded to the convening authority, as the reviewing authority. Action on the record may be taken by the convening authority, a commissioned officer commanding at that time, a successor in command, or by the governor.

39A-5-228 - Convening authority refers record to SJA — Opinion.

The convening authority shall refer the record of each military court to the SJA, who shall submit a written opinion to the convening authority. If the final action of the court is an acquittal of all charges and specifications, the opinion is limited to questions of jurisdiction.

39A-5-229 - Specification dismissal — No finding of not guilty — Procedure.

39A-5-229(1) If a specification before a military court 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. 39A-5-229(2) If there is an apparent error or omission in the record or the record shows improper or inconsistent action by a court martial regarding a finding or sentence, that may 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. However, the record may not be returned for:

reconsideration of a finding of not guilty of any specification, or a ruling which amounts to a finding of not guilty; 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 a provision of this chapter; or increasing the severity of the sentence.

39A-5-230 - Rehearing ordered by convening authority — Grounds — Procedure.

39A-5-230(1) If the convening authority disapproves the findings and sentence of a military court, the convening authority may, unless there is a lack of sufficient evidence in the record to support the findings, order a rehearing, and state the reasons for disapproval. If the convening authority disapproves the findings and sentence and does not order a rehearing, the charges shall be dismissed. 39A-5-230(2) Each rehearing shall take place before a military court composed of members who are not members of the military court that originally heard the case. At a rehearing, the accused may not be tried for any offense for which a verdict of not guilty was returned by the original military court. 39A-5-230(3) A sentence imposed may not exceed or be more severe than the original sentence, unless based on a finding of guilty regarding an offense not considered on the merits in the original proceedings.

39A-5-231 - Convening authority review — Action by governor final — SJA review — Appeal of final action.

39A-5-231(1) When the governor is the convening authority, the governor’s action on the review of a record of trial is final. 39A-5-231(2) The state judge advocate shall review the record of trial in each case prior to final action being taken. 39A-5-231(3) The SJA shall make a written review and recommendation on legal issues to the convening authority for consideration prior to final action in any case. 39A-5-231(4) In a case subject to review by the SJA under this section, the SJA shall submit an opinion regarding any errors committed during the trial and an analysis of the legal effect of the error to the convening authority prior to the convening authority’s affirmation and action regarding the findings and sentence in the case. 39A-5-231(5) The convening authority may affirm only findings of guilty and the sentence or part of the sentence that:

is correct in law and fact; and should be approved, based on the entire record and the advice of the SJA, and any rebuttal submitted by the accused or defense counsel. 39A-5-231(6) In considering the record, the convening authority may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the testimony of the witnesses. 39A-5-231(7) If the convening authority sets aside the findings and sentence:

a rehearing may be ordered, except when the decision to set aside is based on a lack of sufficient evidence in the record to support the findings; or if a rehearing is not ordered, the charges shall be dismissed. 39A-5-231(8) Final action approved by the convening authority may be appealed directly to the Utah Court of Appeals. Notice of appeal shall be filed within 30 days after the final action has been taken by the convening authority.

39A-5-232 - Military court sentence — Execution by convening authority.

39A-5-232(1) Except under Sections 39A-5-306 and 39A-5-231, a military court sentence may be ordered executed by the convening authority when approved, unless suspended or deferred. 39A-5-232(2) The convening authority has discretion to approve the sentence or a part or commuted form of the sentence. 39A-5-232(3) After approval, the convening authority may suspend the execution of the sentence.

39A-5-233 - Probation violation — Hearing — Counsel — Execution of suspended sentence.

39A-5-233(1) Probation imposed as a result of a suspended sentence may be vacated by the convening authority. 39A-5-233(2) Before a suspended military court sentence may be vacated, the officer holding convening authority jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The probationer shall be represented by counsel at the hearing. 39A-5-233(3) The record of the hearing and the recommendation of the officer having jurisdiction shall be sent for action to: the governor in cases involving a military court sentence of confinement; or in all other cases, to the commanding officer of the National Guard unit of which the probationer is a member. If the governor or commanding officer vacates the suspension, any unexecuted part of the sentence except a dismissal shall be executed. 39A-5-233(4) The suspension of any other sentence may be vacated by any authority for the command in which the accused is serving or assigned that is competent to convene a court that imposed the sentence.

39A-5-234 - Petition for new trial — Grounds.

Within 30 days after approval by the convening authority of a military court sentence, the accused may petition the convening authority for a new trial on the ground of newly discovered evidence or fraud on the court.

39A-5-235 - Second trial on an offense prohibited.

39A-5-235(1) An individual may not, without the individual’s written consent, be brought to trial a second time in any military or civilian court of the state for the same offense. 39A-5-235(2) A proceeding in which an accused has been found guilty by a military court upon any charge or specification, is not a trial under this section until the finding of guilty has become final and the review of the case has been completed. 39A-5-235(3) A proceeding that, 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 under this section.

39A-5-236 - Sentence — Vacation or suspension.

39A-5-236(1) A convening authority may vacate or suspend any part or amount of the unexecuted portion of the sentence, including all uncollected forfeitures. 39A-5-236(2) The governor may for good cause shown substitute an administrative form of a discharge for a bad conduct discharge or dismissal executed under a military court sentence.

39A-5-237 - Sentence set aside — Rights restored.

39A-5-237(1) Under rules prescribed by the governor or the adjutant general all rights, privileges, and property affected by an executed portion of a military court sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and the executed part is included in a sentence imposed upon the new trial or rehearing. 39A-5-237(2) If a previously executed sentence of bad conduct discharge is not imposed in a new trial, the governor shall substitute a discharge authorized for administrative issue, unless the accused is serving the remainder of his or her enlistment. 39A-5-237(3) If a previously executed sentence of dismissal is not imposed in a new trial, the governor shall substitute a discharge authorized for administrative issue. A commissioned officer dismissed by a sentence may be reappointed by the governor to the grade and rank the commissioned officer had attained, if a position is available under the applicable organization. Time between the dismissal and reappointment is considered service for all purposes.

39A-5-238 - Finality of military court judgments.

39A-5-238(1) The proceedings, findings, and sentence a military court has reviewed and approved under this chapter, and all dismissals and discharges executed under sentences by military court following review and approval under this chapter, are final and conclusive. 39A-5-238(2) Orders publishing the proceedings of military court 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 new trial under Section 39A-5-234.

39A-5-239 - Courts of inquiry.

39A-5-239(1) Courts of inquiry to investigate any matter may be convened by the governor or his designee, whether or not the individuals involved have requested the inquiry. 39A-5-239(2) A court of inquiry consists of three or more commissioned officers. For each court, the convening authority shall also appoint counsel for the court. 39A-5-239(3) An individual subject to this chapter whose conduct is subject to inquiry shall be designated as a party. An individual subject to this chapter or employed by the National Guard, who has a direct interest in the subject of inquiry, has the right to be designated as a party upon request to the court. An individual designated as a party shall be given due notice and has the right to be present, represented by counsel, to have counsel appointed, to cross examine witnesses, and to introduce evidence. 39A-5-239(4) Members of a court of inquiry may be challenged by a party, but only for cause stated to the court. 39A-5-239(5) The members, counsel, reporter, and interpreters of a court of inquiry shall take an oath or affirmation to faithfully perform the duties required under this section. 39A-5-239(6) Witnesses may be summoned to appear and testify and be examined before a court of inquiry, under the same provisions as for a military court. 39A-5-239(7) A court of inquiry shall make findings of fact but may not express opinions or make recommendations, unless required to do so by the convening authority. 39A-5-239(8) A court of inquiry shall keep a record of the court’s 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 authenticated by a member in lieu of the counsel.

Military Punishments

39A-5-301 - Military punishments — Limits of punishment — Cruel and unusual punishments — Use of irons.

39A-5-301(1) Punishment directed by a military court for an offense may not exceed limits prescribed under Subsection (2) or lesser limits prescribed by the governor for the offense. 39A-5-301(2) A military court may impose upon an accused any of the following after conviction for an offense:

incarceration in a county jail for no longer than one year; a fine of not more than $2,500;forfeitureofpayofnotmorethan$2,500; detention of pay equivalent to three months’ pay for a period not to exceed one year; arrest in quarters for officers; restriction to specified limits for enlisted members; extra duty for not more than 60 consecutive days; reprimand; reduction of enlisted members to the lowest enlisted grade; a bad conduct discharge for enlisted members; dismissal for officers; restitution to any individual or entity injured as a result of the accused’s conduct; or any combination of Subsections (2)(a) through (2)(l). 39A-5-301(3) Cruel or unusual punishments, including flogging, branding, marking, or tattooing on the body may not be imposed by any court or inflicted upon any individual subject to this chapter. 39A-5-301(4) Single or double irons may not be used unless necessary for safe custody.

39A-5-302 - Nonjudicial punishment.

39A-5-302(1) The governor and the adjutant general of Utah may prescribe regulations governing the administration of nonjudicial punishment. The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by a civilian court of competent jurisdiction. 39A-5-302(2) A service member subject to this chapter may request trial by military court in lieu of nonjudicial punishment at any time prior to imposition of nonjudicial punishment.

Upon receipt of a timely request for trial by military court in lieu of nonjudicial punishment, the commanding officer may grant the request, or deny the request and continue with nonjudicial punishment proceedings. If the commander denies the member’s request for trial by military court, the commander may not impose limitations on personal liberty as a punishment under nonjudicial punishment proceedings. For purposes of this section, punishments imposing limitations on personal liberty include restriction to specific limited areas and extra duties. Denial of a request for trial by military court in lieu of nonjudicial punishment does not create a private right of action and is not subject to judicial review. 39A-5-302(3) Any commanding officer in the National Guard may, in addition to a reprimand, impose one or more of the punishments under this section without the intervention of a military court.

Forfeiture of pay shall be calculated based on the monthly amount a service member would receive as base pay if on active duty. If a reduction of pay grade is imposed, forfeiture of pay is based on the grade to which the service member was reduced even if the reduction was suspended. 39A-5-302(4) Punishment imposed by the governor, a general officer, or a full colonel upon officers within the general officer’s or full colonel’s command may include:

forfeiture of not more than one-half of one month’s pay per month for three months; and restriction to specific limited areas, with or without suspension from duty, for not more than 60 consecutive days. 39A-5-302(5) Punishment imposed by the governor, a general officer, or a full colonel upon enlisted personnel within the general officer’s or full colonel’s command may include:

forfeiture of not more than one-half of one month’s pay per month for two months; reduction of one or more pay grades if the imposing commander holds promotion authority over the grade from which the enlisted member was demoted, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades; extra duties, including fatigue or other duties, for not more than 60 consecutive days; and restriction to specific limited areas, with or without suspension from duty, for not more than 60 consecutive days. 39A-5-302(6) Punishment imposed by a commander of the grade of lieutenant colonel or major upon enlisted personnel within the lieutenant colonel’s or major’s command may include:

forfeiture of not more than one-half of one month’s pay per month for two months; reduction of no more than two pay grades if the imposing commander holds promotion authority over the grade from which the enlisted member was demoted; extra duties, including fatigue or other duties, for not more than 45 consecutive days; and restriction to specific limited areas, with or without suspension of duty, for not more than 45 consecutive days. 39A-5-302(7) Punishment imposed by a commander of the grade of captain or lieutenant upon enlisted personnel within the captain’s or lieutenant’s command may include:

forfeiture of not more than one-half of one month’s pay for one month; extra duties, including fatigue or other duties, for not more than 30 consecutive days; restriction to specific limited areas, with or without suspension from duty, for not more than 30 consecutive days; and reduction of one pay grade if the imposing commander holds promotion authority over the grade from which the enlisted member was demoted. 39A-5-302(8) Punishments of restriction to specific limited areas and extra duty may be combined to run concurrently, but the combination may not exceed the maximum duration imposable for extra duty. 39A-5-302(9) The imposing commander or a successor in command may, at any time, suspend by probation: all or any part of the amount of the unexecuted punishment; and a reduction in grade or a forfeiture imposed, whether or not executed. The imposing commander or a successor in command shall set the terms of probation for any suspended punishment. The imposing commander or a successor in command may, at any time, vacate or mitigate any part or amount of the unexecuted punishment. The imposing commander or a successor in command may also set aside in whole or in part the findings, punishment, or both, whether executed or unexecuted, and restore all rights, privileges, and affected property. The imposing commander or a successor in command may mitigate reduction in grade to forfeiture of pay. Extra duties may be mitigated to restriction. A mitigated punishment may not span a greater period of time than the original punishment. When mitigating a reduction in grade to forfeiture of pay, the amount of the forfeiture may not exceed the maximum allowable forfeiture the imposing commander could have originally imposed. 39A-5-302(10) A service member punished under this section may appeal to the next superior commander in the service member’s chain of command. The next superior commander shall conduct a de novo review of both the findings and punishment under procedures provided by regulation. The next superior commander may modify or set aside the findings or punishment, having the same options afforded the imposing commander as described in this section. In no case may the next superior commander increase the severity of the findings or the amount of punishment originally imposed. If two levels of command exist above the imposing commander, the service member, having exhausted the service member’s first level of appeal, may appeal to the next superior commander. If the matter originates with the governor, the adjutant general, or one level of command below the adjutant general, no right to a second appeal exists. The decision of the adjutant general on an appeal of nonjudicial punishment is final and is not subject to further appeal or judicial review. The decision of the governor or the adjutant general to impose nonjudicial punishment upon a service member is final and is not subject to further appeal or judicial review. The imposing commander shall promptly forward any appeal to the next superior commander. During the course of the appeal, the imposing commander may require the appellant to submit to the imposed punishment. 39A-5-302(11) A superior commander shall first obtain a legal review from a judge advocate of the Utah National Guard before acting on an appeal from any of the following imposed punishments:

forfeiture of more than seven day’s pay; reduction of one or more pay grades; extra duties for more than 14 days; or restriction for more than 14 days. 39A-5-302(12) Punishments imposed under this section, except forfeiture of pay, may not extend beyond the termination of the duty status of the punished individual.

39A-5-303 - Fines.

39A-5-303(1) Fines imposed by a military court may be paid to the military court or to an officer executing process for the court. The amount of the fine may be noted upon any state roll or account for pay of the delinquent and deducted from any pay or allowance due or to become due to the individual fined, until the fine is completely paid. 39A-5-303(2) Any sum deducted shall be turned in to the military court which imposed the fine and shall be paid by the officer receiving it under the same procedure as for fines and other money collected under a sentence of a military court. 39A-5-303(3) A fine or penalty imposed by a military court upon an officer or enlisted member shall be paid by the officer collecting it to the state General Fund within 30 days.

39A-5-304 - Forfeiture of pay as sentence.

39A-5-304(1) When a lawful and approved sentence of a court includes a forfeiture of pay or allowances in addition to confinement that is not suspended or deferred, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority. 39A-5-304(2) A forfeiture may not extend to any pay or allowances received before that date.

39A-5-305 - Confinement as sentence — Penal institutions.

39A-5-305(1) A sentence of confinement imposed by a military court, whether or not it 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 National Guard or in any penal institution of the state or of any political subdivision of the state. 39A-5-305(2) If the words “hard labor” are not included in a sentence or punishment imposed by a court martial imposing confinement, the authority executing the sentence or punishment is not prohibited from requiring hard labor as a part of the sentence or punishment. 39A-5-305(3) The officers, sheriffs, and penal institutions of the state and any political subdivisions of the state designated by the governor or his designee under Section 39A-5-111 shall:

receive individuals ordered into confinement before trial and individuals committed to confinement by a military court; confine them according to law; and receive or confine an individual under this chapter without assessing any fee or charge.

39A-5-306 - Bad conduct discharge or dismissal — Approval by governor.

39A-5-306(1) A sentence imposing dismissal or bad conduct discharge against a member of the National Guard who is not in federal service may not be executed until it is approved by the governor. 39A-5-306(2) A discharge or dismissal may not be imposed by any military court unless a complete written record of the proceedings has been made and is available for consideration of the military court.