The final report of the Georgia Code of Military Justice House Study Committee

House of Representatives

CHRISTIAN COOMER REPRESENTATIVE, DISTRICT 14

ALEX ATWOOD REPRESENTATIVE, DISTRICT 179

JOHNNIE CALDWELL REPRESENTATIVE, DISTRICT 131

THE FINAL REPORT OF THE GEORGIA CODE OF MILITARY JUSTICE
HOUSE STUDY COMMITTEE
COMMITTEE MEMBERS
Representative Christian Coomer Chair District 14
Representative Alex Atwood District 179
Representative Johnnie Caldwell, Jr. District 131

COMMITTEE FOCUS, CREATION, AND DUTIES
The Georgia Code of Military Justice House Study Committee was created in the 2014 Legislative Session by House Resolution 1523. The sponsors were Rep. Coomer of the 14th, Rep. Holcomb of the 81st, Rep. Willard of the 51st, and Rep. Atwood of the 179th. House Resolution 1523 was introduced as a resolution creating a joint study committee with the Senate. The Resolution was changed to reference only the House of Representatives, but the two meetings were attended by members of the House and Senate. The committee was charged with undertaking a comprehensive study to consider whether enactment of the Model State Code of Military Justice (Model Code), or an amended version would benefit the Georgia National Guard and State Defense Force. House Resolution 1523 points out that although the Georgia Code of Military Justice was, at the time of its adoption in 1955, based on the federal Uniform Code of Military Justice (UCMJ), the UCMJ has been substantially revised and amended since 1955 while the Georgia Code of Military Justice (GCMJ) has not.
Representative Christian Coomer of the 14th was appointed by the Speaker to serve as the Committee's Chair. The Speaker also appointed Representative Alex Atwood of the 179th and Representative Johnnie Caldwell of the 131st to serve on the Committee. The Committee met on August 19, 2014 at the Clay National Guard Center, located on Dobbins Air Reserve Base, and on October 17, 2014 at the Combat Readiness Training Center in Savannah and began each meeting with presentations about the role the Base and Center play within the community and the Guard.
The Committee did not hear any formal testimony, but instead worked closely with the Senate Code of Military Justice Study Committee and the Judge Advocate General's Corps of the Georgia Army and Air National Guard. Members of the Senate Committee were Senator Hunter Hill of the 6th (Senate Chair). Senator Mike Dugan of the 30th and Senator Ed Harbison of the 15th were the two other members of the Senate Study Committee.
The participating Judge Advocates General were Colonel Bobby Christine, Major Scott Delius, Lieutenant Colonel Brian Bischoff, Major David Russo, Lieutenant Colonel Joel Howell, Lieutenant Randy Hicks, and Captain Jason Ferguson. Other individuals participating were Justice David E. Nahmias of the Supreme Court of Georgia, Lieutenant Colonel Chris Rachel, and Colonel (Ret.) Keith Hodges.
BACKGROUND
Prepared by the Senate Research Office, 2014
The Georgia National Guard is comprised of over 13,000 members and operates under a state budget of approximately $9 million and a federal budget of $552 million annually. It operates across both State and Federal responses, comprised of State Active Duty (SAD), Full-Time National Guard Duty (Title 32 of the U.S. Code), and Active Duty (Title 10 of the U.S. Code).
State Active Duty (SAD)
The Governor can activate National Guard personnel to "State Active Duty" in response to natural or man-made disasters, or Homeland Defense missions.1 Since SAD is based on State statute, policy, funds, soldiers and airmen remain under the command and control of the Governor. A key aspect of this duty status is that the Posse Comitatus Act does not apply, giving National Guardsmen the ability to act in a law enforcement capacity within

1 O.C.G.A. 38-2-6

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their home state or adjacent state if granted by that state's Governor.2 Guard members activated under Title 32 are subject to the GCMJ and not to the Federal UCMJ.
Title 32 Full-Time National Guard Duty

"Full-time National Guard Duty" means training (Drill Weekends and Annual Training) or other duty performed by a member of the National Guard. Title 32 of the U.S. Code also allows the Governor, with the approval of the President or the Secretary of Defense, to order a member to duty for operational Homeland Defense activities in accordance with the following sections of U.S. Code (USC): 32 USC 502(f) allows members of the National Guard to be ordered to full-time National Guard duty to
perform operational activities, such as airport security missions after 9/11 and also natural disaster response. 32 USC 901 authorizes "Homeland Defense activity" for the military protection of the territory or domestic population of the U.S., or of infrastructure or other asset of the U.S. determined by the Secretary of Defense as being critical to national security and at risk of a threat or aggression. 32 USC 902 authorizes the Secretary of Defense to provide funds to a Governor to employ National Guard units or members to conduct Homeland Defense activities.
Essentially, Title 32 enables the Governor to place a guardsman in full-time duty status under the command and control of the state, but is directly funded with federal dollars. Even though this duty status is authorized by federal statute, this section is a statutory exception to the Posse Comitatus Act; the Governor may use the Guard in a law enforcement capacity while the chain of command rests in the state. Likewise, Guard members activated under Title 32 are subject to the GCMJ and not to the Federal UCMJ.
Title 10 Active-Duty

"Active duty" means full-time duty in the active military service under Title 10 of the U.S. Code. It allows the President to "federalize" the National Guard forces by ordering them to active duty in their reserve component status or by calling them into Federal service. Examples include military deployment overseas, such as to Afghanistan and Iraq. Title 10 also includes domestic deployments to suppress insurrections, domestic violence, or prevent an invasion. Guard members activated under Title 10 are subject to the Federal UCMJ and not to the GCMJ.
Duty Status

COMMAND AND CONTROL WHO PERFORMS DUTY
WHERE DUTY IS PERFORMED
PAY
MISSION TYPES

STATE ACTIVE DUTY
Governor
The "Militia", i.e., Army National Guard and Air National Guard
Continental US (CONUS) In Accordance With (IAW) State
Law State
IAW State Law (Riot control, Emergency Response, etc.)

TITLE 32 Governor

TITLE 10 President

Army and Air National Guard Federalized National Guard

CONUS

Worldwide

Federal
Training and other federally authorized

Federal
Overseas Training and as assigned after mobilization

2 The Posse Comitatus Act (18 USC 1385) limits the powers of federal government in using federal military personnel to enforce state laws. Page 2

DISCIPLINE
SUPPORT LAW ENFORCEMENT

State Military Code Yes

State Military Code Yes

UCMJ No

COMMITTEE FINDINGS
Georgia's current Code of Military Justice was originally enacted in 1955. With the exception of a slight change to O.C.G.A. 38-2-360 in 1996 allowing for greater fines and forfeitures, there has been little change to the document. In contrast, the UCMJ, which was originally enacted in 1951, has been significantly amended 19 times.
Military justice actions taken by states are often markedly different than courts-martial or nonjudicial punishment under the UCMJ. This report provides an overview of the current GCMJ and the Model Code intended to replace it. Specifically, the overview addresses pre-trial issues, all levels of courts-martial, nonjudicial punishment, post-trial procedures, and appellate matters.
Pre-Trial Issues
Currently, by being a member of the National Guard, all Guard Members are subject to the GCMJ at all times.3 Theoretically, misconduct by a Guard Member at any time could result in military justice action as courts-martial jurisdiction exists over a member regardless of his or her duty status at the time of the offense. That is to say, the GCMJ does not require an offense to have a military nexus, or be service-connected, to establish jurisdiction over misconduct committed by a Guard member under SAD or under Title 32 Duty.4 The proposed Model Code requires both status as a National Guard member and nexus between the "military offense or nonmilitary offense and the organized militia."5
The UCMJ does not limit jurisdiction to offenses committed by an accused Service Member at certain locations, such as on a military installation, or even within the United States. For Title 10 active-duty personnel, status of the accused at the time of the offense is the key to jurisdiction. For active-duty personnel, the UCMJ jurisdiction applies at all times and in all places.
Although Georgia National Guard personnel often cross state lines for official duties under both Title 32 and when serving on SAD, the GCMJ is similar to the UCMJ in that jurisdiction for courts-martial action is not limited to the boundaries of the state. An offense committed by Guard members serving outside of the state still confers jurisdiction over the offense and the accused. Likewise, the Model Code provides for extraterritorial jurisdiction when National Guard personnel commit offenses while serving beyond the limits of Georgia.
Courts-Martial Proceedings
Soldiers accused of committing criminal acts under the UCMJ may be tried by general, special, or summary court-martial. The most serious offenses, including those which are subject to the death penalty, are tried by general or special court-martial. Less serious crimes are generally handled by summary courts-martial.

3 O.C.G.A. 38-2-322 4 Traditional advice, however, maintains that no punishment is administered when members are not on duty at the time of a violation. 5 O.C.G.A. 38-2-1002 from Model Code
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Generally, state courts-martial are limited to minor crimes or purely military offenses, such as a minor assault or unauthorized absence from drill. Most state military code punishments are relatively minor and some do not provide for confinement. Unless empowered to do so by statute, most civilian state courts do not even have jurisdiction over military offenses. Similarly, most state military courts would not be involved with non-military offenses or serious acts of criminal conduct, even if committed by a Guard member.
If a National Guard member commits a serious criminal offense, such as rape, murder, or other felony, that misconduct is also a violation of state criminal laws and would most-likely be tried in civilian courts. Additionally, courts-martial punishments under state law rarely exceed the sanctions normally imposed for misdemeanor offenses. Therefore, serious criminal misconduct committed by National Guard personnel is generally disposed of by civilian state courts rather than courts-martial.

Types of Courts-Martial under GCMJ and Model Code

Type of Court Martial

Document GCMJ

Convening Authority Members

Governor

One Law Officer and Five Members.

Jurisdiction
All Guard Members.

Model General Courts- Code
Martial

Governor, or by the Chief Justice, if the Governor is the accuser.

A military judge and at least six members; or only a military judge, if the accused requests a court composed of only a military judge and the military judge approves.

All Guard Members.

Punishments
A fine of not more than $200.00; Forfeiture of pay and allowances; A reprimand; Dismissal or dishonorable discharge; Reduction of a noncommissioned officer to the ranks; or Any combination of the punishments listed above. Confinement for a period up to ten years; Restriction to specified limits for up six months; Dismissal, dishonorable discharge, or bad conduct
discharge; Forfeiture of all or a portion of pay and allowances; Restitution; Reduction to the lowest or any intermediate pay grade of
enlisted persons; A reprimand; and No punishment.

GCMJ

Special CourtsMartial

Model Code

Convened at the brigade and battalion commander levels, although the Governor also can convene.
Governor, the adjutant general, or the deputy adjutant general for Army or Air National Guard.

At least three members.
A military judge and at least six members; or only a military judge, if the accused requests a court composed of only a military judge and the military judge approves.

All Guard Members except for Commissioned Officers.
All Guard Members.

Same powers of punishment as general courts-martial, except that a fine imposed by a special court-martial may not exceed $100.00 for a single offense and a bad conduct discharge may not be adjudged by a special court-martial unless a complete record of the proceedings and testimony before the court has been made.
Confinement for a period up to one year; Restriction to specified limits for up to six months; Bad conduct discharge; Forfeiture of all or a portion of pay and allowances for up
to one year; Restitution; Reduction to the lowest or any intermediate pay grade of
enlisted persons; A reprimand; and No punishment.

GCMJ
Summary Courts-Martial
Model Code

Generally convened by a company commander, but the GCMJ theoretically allows any superior officer, including the Governor, to convene. Any person authorized to convene a special

One Commissioned Officer.
One Commissioned Officer.

All Guard Members except for Commissioned and Warrant Officers.

Fine up $25.00 for a single offense; Forfeiture of pay; and Reduction of a noncommissioned officer to the ranks.

All Guard Members, except for

Confinement for up to one month; Restriction to specified limits for up to two months; Forfeiture of all, or a portion of, pay and allowances for up

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court-martial or any commander in the grade of O-6 (Colonel) or above.

officers, cadets, candidates, and midshipmen.

to 60 days; Restitution; Reduction of no more than two grades of enlisted persons; A reprimand; and No punishment.

General Courts-Martial
A general court-martial under the UCMJ is distinguishable from other proceedings by its potential punishments. Since only a general court-martial is empowered to impose the death penalty or the dismissal of an officer, it is normally used only for the most serious offenses.
Under the current GCMJ, general courts-martial are convened by the Governor only, and consist of a law officer (judge) and at least five members.6 General courts-martial have jurisdiction to try persons for any offense made punishable by the GCMJ, but punishments by general courts-martial are very limited and include only the following sentences: A fine of not more than $200.00; Forfeiture of pay and allowances; A reprimand; Dismissal or dishonorable discharge; Reduction of a noncommissioned officer to the ranks; or Any combination of the punishments listed above.7
Under the proposed Model Code, general courts-martial are convened by the Governor, or by the Chief Justice, if the Governor is the accuser. General courts-martial consist of a military judge and at least six members; or only a military judge, if the accused requests a court composed of only a military judge and the military judge approves.
General courts-martial under the proposed Model Code have jurisdiction to try persons for any offense made punishable by the Code and can adjudge any one or more of the following punishments: Confinement for a period up to ten years; Restriction to specified limits for up six months; Dismissal, dishonorable discharge, or bad conduct discharge; Forfeiture of all, or a portion of, pay and allowances; Restitution; Reduction to the lowest or any intermediate pay grade of enlisted persons; A reprimand; and No punishment.
The Model Code provides for general courts-martial that are closely aligned with the UCMJ, but limits the potential confinement punishments to a maximum of ten years. Moreover, there is no possibility for a death sentence.
Special Courts-Martial

6 Provisions for jurisdiction and composition of the various courts-martial are found in Part 4 and 5 of the GCMJ and the Model Legislation. 7 In the current GCMJ, O.C.G.A. 38-2-375 authorizes all courts-martial, general, special, and summary, to have the power to sentence a defendant to confinement in lieu of fines; provided, however, that the sentences of confinement must not exceed one day for each $1.00 of fine authorized.
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A special court-martial is similar to a general court-martial under the UCMJ; however it differs significantly in the potential punishments it may impose. Special courts-martial may not impose any separation greater than a badconduct discharge, nor impose any confinement in excess of one year.
Under the current GCMJ, special courts-martial are often convened at the brigade and battalion commander levels, although the Governor also possesses this authority. Special courts-martials consist of at least three members and have jurisdiction to try persons subject to the GCMJ, except commissioned officers. They also have the same powers of punishment as general courts-martial, except that a fine imposed by a special courtmartial may not exceed $100.00 for a single offense and a bad conduct discharge may not be adjudged by a special court-martial unless a complete record of the proceedings and testimony before the court has been made.
The Model Code provides that special courts-martial may be convened by the Governor, the adjutant general, or the deputy adjutant general for Army or Air National Guard. If any of those individuals is an accuser, the special court-martial will be convened by a superior competent authority. Special courts-martial consist of a military judge and at least six members; or only a military judge if the accused requests a court composed of only a military judge and the military judge approves.
Special courts-martial have jurisdiction over all Guard members, are generally convened to deal with essentially misdemeanor infractions, and have the authority to adjudge any one or more of the following punishments: Confinement for a period up to one year; Restriction to specified limits for up to six months; Bad conduct discharge; Forfeiture of all or a portion of pay and allowances for up to one year; Restitution; Reduction to the lowest or any intermediate pay grade of enlisted persons; A reprimand; and No punishment.
Summary Courts-Martial
Summary courts-martial are less formal proceedings than general or special courts-martial and are more restricted in the punishments that may be imposed; their primary purpose is to promptly adjudicate minor offenses. Under the UCMJ, summary courts-martial are conducted by a commissioned officer, who is not a Judge Advocate, and have the authority to try any Service Member, except commissioned officers, warrant officers, cadets, aviation cadets, and midshipmen.
Under the GCMJ, summary courts-martial are generally convened by a company commander, but the GCMJ theoretically allows summary courts-martials to be convened by any superior officer all the way up to the Governor. Summary courts-martials simply consist of one officer; have the authority to try all National Guard members except officers and warrant officers, and have the power to sentence a defendant to a fine of not more than $25.00 for a single offense, forfeiture of pay and allowances, and reduction of a noncommissioned officer to the ranks.
Defendants can object to trial by summary court-martial, in which case, trial will be ordered by special or general court-martial.
The Model Code allows summary courts-martials to be convened by any person authorized to convene a special court-martial or any commander in the grade of O-6 (Colonel) or above. Summary courts-martial consist of one
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commissioned officer and have the authority to try all Guard Members, except for officers, cadets, candidates, and midshipmen.
Just as in the GCMJ, no Guard Member may be brought to trial before a summary court-martial if he or she objects. If an objection is made by an accused, trial by special or general court-martial will be ordered. Summary courts-martial may adjudge any one or more of the following punishments: Confinement for up to one month; Restriction to specified limits for up to two months; Forfeiture of all or a portion of pay and allowances for up to 60 days; Restitution; Reduction of no more than two grades of enlisted persons; A reprimand; and No punishment. Sentences and Confinement; Classification of Convictions
As illustrated above, the current GCMJ narrowly provides for sentences of confinement (incarceration) as a potential punishment, for a maximum duration of 200 days. But in general, most serious offenses committed by Guard members would also be violations of state criminal law and handled by the civilian judicial system. Because of this, very few states have potential sentences of more than one year, and in many states, including Georgia, confinement sentences are only given in lieu of fines.
In contrast, the Model Code's punishments are similar to those of the UCMJ, except that the death penalty and sentences of confinement in excess of ten years are not authorized.8
While all convictions under the UCMJ are considered federal criminal convictions, violations of the current GCMJ are not considered criminal acts or convictions, but rather civil infractions. Under the Model Code, a conviction by general court-martial of any offense for which an accused may receive a sentence of confinement for more than one year is considered a felony offense. Except for convictions by a summary court-martial, all other convictions are misdemeanors. Convictions by a summary court-martial are not considered criminal convictions.9
Nonjudicial Punishment
The UCMJ, the current GCMJ, and the Model Code all include provisions for nonjudicial punishments. All active duty service members are familiar with the UCMJ's Article 15, which prescribes the types of nonjudicial punishments commanders may impose on members who commit minor offenses that do not warrant a courtmartial. Each armed service is permitted to develop its own regulation pertaining to the imposition of nonjudicial punishment, but in general, Article 15 may be used to: Correct, educate, and reform offenders who the imposing commander determines cannot benefit from less
stringent measures; Preserve a service member's record of service from unnecessary stigma by record of court-martial
conviction; and Dispose of minor offenses in a manner requiring less time and personnel than trial by court-martial.
Punishments may include restrictions, confinement in quarters, extra duties, reduction in grade, and forfeiture of pay. Nonjudicial punishment is generally administered informally by commanders and Service members do

8 O.C.G.A. 38-2-1056(a) of the Model Code 9 Ibid.

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not have to accept the nonjudicial punishment process, thus possessing the right to demand court-martial in lieu of nonjudicial punishment proceedings.
Like most states, Georgia has adopted a form of nonjudicial punishment under the GCMJ with punishments generally similar to those imposed under Article 15 of the UCMJ.10
The Model Code also contains nonjudicial punishments similar to Article 15 of the UCMJ.11 Specifically, all commanding officers are authorized to impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial: An admonition; A reprimand; The withholding of privileges for up to six months, whether or not such withholding is for consecutive
months; Restitution; The forfeiture of pay for up to seven days; A reduction to the next inferior pay grade of enlisted members in the grade of E-4 and below; Extra duties, including, but not limited to, fatigue duties, for no more than 14 days, whether or not such
days are consecutive; and Restriction to certain specified limits, with or without suspension from duty, for no more than 14 days,
whether or not such days are consecutive.
The Model Code also authorizes commanding officers in the grade of O-4 (Major) or above to impose upon enlisted members one or more of the following punishments: The forfeiture of up to one-half of one month's pay per month for two months; A reduction by one grade of a member in the grade of E-6 (Staff Sergeant/Technical Sergeant) and below; Extra duties for up to 45 days, whether or not such days are consecutive; and Restriction to certain specified limits, with or without suspension from duty, for up to 60 days, whether or
not such days are consecutive.
Commanding officers in the grade of O-6 (Major) or above may also impose a reduction by one grade of a member in the grade of E-7 (Sergeant First Class/Master Sergeant/First Sergeant) and below.
The Adjutant General or an officer of a general or flag rank in command may impose arrest in quarters for up to 30 days, whether or not such days are consecutive, upon officers and enlisted members.
The officer who imposes nonjudicial punishment may, at any time, suspend, set aside, mitigate, or remit any part or amount of the punishment and restore all rights, privileges, and property affected. Such officer may also: Mitigate reduction in grade to forfeiture of pay; Mitigate arrest in quarters to restriction; or Mitigate extra duties to restriction.
Unlike the UCMJ and the current GCMJ, Guard members do not have the right to decline nonjudicial punishment and demand any type of court-martial.12 Instead, a punished individual who considers the punishment unjust or disproportionate to the offense may appeal to the next superior authority within 30 days after the punishment is either announced or sent to the accused.

10 O.C.G.A. 38-2-360 11 O.C.G.A. 38-2-1015 of the Model Code
12 O.C.G.A. 38-2-1015(l) of the Model Code

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Post-Trial and Matters Post-Trial Review
As is required by the UCMJ, most state courts-martial, including Georgia, undergo a mandatory post-trial review. Like most states, the current GCMJ allows the convening authority of a court-martial to modify sentences; order a rehearing, except in cases of an acquittal; or dismiss the charges.13 When the convening authority is the Governor, his or her action on the review of any record of trial will be final.14
Additionally, the GCMJ requires a legal review of convictions by the State Judge Advocate.15 All actions are final in all cases reviewable by the State Judge Advocate. In any reviewable case, the State Judge Advocate is authorized to: Act only with respect to the findings and sentence as approved by the convening authority; Affirm only such findings of guilty, and the sentence or such part or amount of the sentence as found correct
in law and fact, which he or she determines on the basis of the entire record; Weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact,
recognizing that the trial court saw and heard the witnesses; Order a rehearing if the findings and sentence are set aside, except where the setting aside is based on lack
of sufficient evidence to support the findings; or Order that the charges be dismissed if the findings and sentence are set aside and no rehearing is ordered.
The Governor plays no role in post-trial reviews except when the Governor is the convening authority.
The Model Code provides similar provisions, requiring the convening authority and the State Judge Advocate to review courts-martial and to make revisions when necessary.16
State Military Appellate Courts
Under the UCMJ, courts-martial convictions that result in a punitive discharge or confinement for more than one year are required to be reviewed by the appellate court for the accused's branch of service. Similarly, several states have established appellate bodies to review military convictions from the National Guard. Several other states conduct some form of appellate review without a formal standing military court. These states review court-martial convictions by appointing boards of review, when necessary, and are usually appointed by the State Judge Advocate, the state's Adjutant General, or the Governor.
Although the Study Committee briefly considered permitting appeals to proceed to the civilian state appellate courts, it ultimately decided on adopting a model similar to Alabama's Military Court-Martial Review Panel for the Model Code.17 Under Alabama's model, the Governor establishes a Military Court-Martial Review Panel composed of one or more panels, with each panel composed of at least three appellate military judges. The military judges must be active or retired judge advocates. For the purpose of reviewing courts-martial cases, the body may sit in panels or as a whole in accordance with the rules prescribed by the Governor. All appeals of decisions of courts-martial proceed directly to the Review Panel. Decisions of the Review Panel are subject to review by the Alabama Supreme Court by writ of certiorari, and the appellate procedures are identical to those for the appeal of criminal cases.18

13 O.C.G.A. 38-2-483 and O.C.G.A. 38-2-484 14 O.C.G.A. 38-2-486(a) 15 O.C.G.A. 38-2-486 16 Part 9 of the Model Code 17 AL Code 31-2A-66 18 AL Code 31-2A-67

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