Chapter 9. Military Courts of California Military And Veterans Code >> Division 2. >> Part 1. >> Chapter 9.
The military courts of this state are: (a) general
courts-martial; (b) special courts-martial; (c) summary
courts-martial; (d) courts of inquiry; and (e) Courts-Martial
(a) Under regulations as the Governor may prescribe, and
under any additional regulations as may be prescribed by the Adjutant
General, limitations may be placed on the powers granted by this
section with respect to the kind and amount of punishment authorized,
the categories of commanding officers and warrant officers
exercising command authorized to exercise those powers, the
applicability of this section to an accused who demands trial by
court-martial, and the kinds of courts-martial to which the case may
be referred upon that demand. Except in the case of the imposition of
fines upon officers and warrant officers, punishment may not be
imposed upon any member of the California National Guard under this
section if the member has, before the imposition of punishment,
demanded trial by court-martial in lieu of punishment. Under similar
regulations, rules may be prescribed with respect to the suspension
of punishments authorized hereunder. If authorized by regulations of
the Adjutant General, a commanding officer who under the Uniform Code
of Military Justice would exercise general court-martial
jurisdiction or an officer of general rank in command may delegate
his or her powers under this section to a principal assistant.
(b) Subject to subdivision (a), any commanding officer may, in
addition to or in lieu of admonition or reprimand, impose one or more
of the following disciplinary punishments for minor offenses without
the intervention of a court-martial:
(1) Upon officers of his or her command:
(A) Restriction to certain specified limits, with or without
suspension from duty, for not more than 30 consecutive days.
(B) If imposed by an officer who under the Uniform Code of
Military Justice would exercise general court-martial jurisdiction or
an officer of general rank in command:
(i) Arrest in quarters for not more than 30 consecutive days.
(ii) Impose a fine of not more than 15 days pay per month for two
(iii) Restriction to certain specified limits with or without
suspension from duty for not more than 60 consecutive days.
(iv) Detention of not more than 15 days' pay per month for three
(2) Upon other personnel of his or her command:
(A) Correctional custody for not more than seven consecutive days.
(B) Impose a fine of not more than seven days' pay.
(C) Reduction to the next inferior pay grade, if the grade from
which demoted is within the promotion authority of the officer
imposing the reduction or any officer subordinate to the one who
imposes the reduction.
(D) Extra duties, including fatigue or other duties, for not more
than 14 consecutive days.
(E) Restriction to certain specified limits, with or without
suspension from duty, for not more than 14 consecutive days.
(F) Detention of not more than 14 days' pay.
(G) If imposed by an officer of the grade of major or above:
(i) Correctional custody for not more than 30 consecutive days.
(ii) Impose a fine of not more than 15 days' pay per month for two
(iii) Reduction to the lowest or any intermediate pay grade, if
the grade from which demoted is within the promotion authority of the
officer imposing the reduction or any officer subordinate to the one
who imposes the reduction, but an enlisted member in a pay grade
above E-4 may not be reduced more than two pay grades.
(iv) Extra duties, including fatigue or other duties, for not more
than 45 consecutive days.
(v) Restrictions to certain specified limits, with or without
suspension from duty, for not more than 60 consecutive days.
(vi) Detention of not more than 15 days' pay per month for three
The punishments heretofore prescribed by subdivision (b) (1) A, B
(i) and (iii) and subdivision (b) (2) A, D, E, G(i), (iv) and (v)
hereof may be imposed only during annual active duty for training or
active state service, except that extra duties may be imposed upon
enlisted men and women while in armory drill status for two hours (to
be completed not later than 2400 hours) for two consecutive drills.
Detention of pay shall be for a stated period of not more than one
year but if the offender's term of service expires earlier, the
detention shall terminate upon that expiration. No two or more of the
punishments of arrest in quarters, correctional custody, extra
duties, and restriction may be combined to run consecutively in the
maximum amount imposable for each. Whenever any of those punishments
are combined to run consecutively, there shall be an apportionment.
In addition, forfeiture of pay may not be combined with detention of
pay without an apportionment. For the purposes of this subdivision,
"correctional custody" means the physical restraint of a person
during duty or nonduty hours and may include extra duties, fatigue
duties, or hard labor. If practicable, correctional custody shall not
be served in immediate association with persons awaiting trial or
held in confinement pursuant to trial by court-martial.
(c) An officer in charge may impose upon enlisted members assigned
to the unit of which he or she is in charge any of the punishments
authorized under subdivision (b)(2)(A) to (G), inclusive, as the
Adjutant General may specifically prescribe by regulation.
(d) The officer who imposes the punishment authorized in
subdivision (b), or his or her successor in command, may, at any
time, suspend probationally any part or amount of the unexecuted
punishment imposed and may suspend probationally a reduction in grade
or a fine imposed under subdivision (b), whether or not executed. In
addition, the officer may, at any time, remit or mitigate any part
or amount of the unexecuted punishment imposed and may set aside in
whole or in part the punishment, whether executed or unexecuted, and
restore all rights, privileges, and property affected. The officer
may also mitigate reduction in grade to a fine or detention of pay.
(1) arrest in quarters to restriction;
(2) correctional custody to extra duties or restriction, or both;
(3) extra duties to restriction;
the mitigated punishment shall not be for a greater period than
the punishment mitigated. When mitigating a fine to detention of pay,
the amount of the detention shall not be greater than the amount of
the fine. When mitigating reduction in grade to a fine or detention
of pay, the amount of the fine or detention shall not be greater than
the amount that could have been imposed initially under this article
by the officer who imposed the punishment mitigated.
(e) A person punished under this section who considers his or her
punishment unjust or disproportionate to the offense may, through the
proper channel, appeal to the next superior authority. The appeal
shall be promptly forwarded and decided, but the person punished may
in the meantime be required to undergo the punishment adjudged. The
superior authority may exercise the same powers with respect to the
punishment imposed as may be exercised under subdivision (d) by the
officer who imposed the punishment. Before acting on an appeal from a
(1) arrest in quarters for more than seven days;
(2) correctional custody for more than seven days;
(3) a fine of more than seven days' pay;
(4) reduction of one or more pay grades from the fourth or a
higher pay grade;
(5) extra duties for more than 14 days;
(6) restriction for more than 14 days; or
(7) detention of more than 14 days' pay;
the authority who is to act on the appeal shall refer the case to
a judge advocate of the California National Guard for consideration
and advice, and may so refer the case upon appeal from any punishment
imposed under subdivision (b).
(f) The imposition and enforcement of disciplinary punishment
under this section for any act or omission is not a bar to trial by
court-martial for a serious crime or offense growing out of the same
act or omission, and not properly punishable under this section; but
the fact that a disciplinary punishment has been enforced may be
shown by the accused upon trial, and when so shown shall be
considered in determining the measure of punishment to be adjudged in
the event of a finding of guilty.
(g) The Adjutant General may, by regulation, prescribe the form of
records to be kept of proceedings under this article and may also
prescribe that certain categories of those proceedings shall be in
(a) The constitution and jurisdiction of general
courts-martial, special courts-martial, summary courts-martial, and
courts of inquiry, the form and manner in which the proceedings are
conducted and recorded, the forms of oaths and affirmations taken in
the administration of military law by such courts, the limits of
punishment, and the proceedings in the revision thereof, shall be
governed by the terms of the laws and regulations governing the
United States Army, Air Force, or Navy, and the law and procedure of
similar courts of the United States Army, Air Force, or Navy, except
as otherwise provided in this chapter.
(b) The provisions of the Uniform Code of Military Justice, and
the rules and regulations published thereunder, shall govern and be
applicable to the active militia, including the California National
Guard, except as otherwise provided in this code, the California
Manual for Courts-Martial, or other regulations as adopted by the
Governor or Adjutant General.
General courts-martial may be convened by the President of the
United States or the Governor or the Adjutant General. The convening
authority shall be the approving, reviewing and confirming
authority. After authentication the record will be sent by the trial
counsel to the reviewing authority for proper action and will
thereafter be filed in the Office of the Adjutant General.
Special courts-martial may be appointed by the commanding
officer of a district, garrison, fort, post, camp, station, or other
place where troops are on duty, division, brigade, regiment, detached
battalion, or other detached command or corresponding unit of Army
or Air Force, and by the commanding officer of any group of detached
units placed under a single commander for this purpose. Such
courts-martial may also be appointed by superior authority when by
the latter deemed desirable. When any such commanding officer is the
accuser or the prosecutor of the person or persons to be tried, the
court shall be appointed by superior authority. Special
courts-martial may be composed of either one officer who shall be a
field grade officer of the rank of major, lieutenant colonel or
colonel or three or more members as provided for in the Uniform Code
of Military Justice and the rules and regulations published
thereunder. After final action by the reviewing authority the record
of the trial by special courts-martial shall be filed in the office
of the Adjutant General.
Summary courts-martial may be appointed by the commanding
officer of a garrison, fort, post, camp, or other place where troops
are on duty, regiment, detached battalion, detached company, or other
detachment; but those summary courts-martial may in any case be
appointed by superior authority when by the latter deemed desirable:
Except when only one officer is present with a command, he or she
shall be the summary courts-martial of that command and shall hear
and determine cases brought before him or her. After final action by
the reviewing authority an authenticated copy of the completed charge
sheet shall be filed in the office of the Adjutant General.
Courts of inquiry shall consist of at least three members and
may be ordered by the Governor to examine into the nature of any
transaction of or accusation or imputation against any officer or
enlisted man or woman. The courts shall not be ordered except upon
the request of the officer concerned or whose conduct is to be
inquired into or upon the request of the enlisted man or woman
The members of the court may be officers or qualified enlisted men
or women, and the court may include both officers and qualified
enlisted men or women.
The practice and procedure of the court of inquiry shall be in
accordance with the Articles of War and like tribunals appointed for
similar purposes in the United States Army, United States Air Force,
and United States Navy. The court shall, without delay, report to the
officer ordering it, the evidence adduced, a statement of the facts,
and, when required, an opinion thereon.
Boards for conducting investigations and investigating officers
may be appointed in accordance with the rules and regulations adopted
for the appointment of similar boards and officers in the United
States Army, United States Air Force, and United States Navy.
(a) The Courts-Martial Appellate Panel shall consist of
three justices to hear matters described in Section 458.1. The
Governor, by general order, shall appoint the three justices who have
experience and training in the field of military law. The panel
shall conduct itself as a three-justice court.
(1) A justice shall not be liable civilly or criminally for any
act or acts done by them in the performance of his or her duty, as
described in Section 472.
(2) A justice shall be subject to a code of judicial conduct in
accordance with applicable the United States Army and the United
States Air Force regulations.
(3) A justice shall sit for four years upon which his or her
appointment shall be terminated or upon acceptance of his or her
resignation by the Adjutant General, whichever occurs first.
(4) A justice shall be paid at the rate of a federal O-6, a
military pay grade, only while in session.
(b) The Courts-Martial Appellate Panel may be convened by the
President of the United States, the Governor, or the Adjutant
General courts-martial have power:
(a) To try commissioned officers, warrant officers, and enlisted
members of the active militia.
(b) To adjudge:
(1) Dismissal, in the case of a commissioned or warrant officer.
(2) Dishonorable discharge, in the case of an enlisted member.
(3) Any other punishment authorized for a special court-martial
handling analogous charges under the Uniform Code of Military Justice
and the federal Manual for Courts-Martial, including, but not
limited to, up to one year in confinement.
Special courts-martial have power:
(a) To try commissioned officers, warrant officers, and enlisted
members of the active militia.
(b) To adjudge any punishment authorized for a special
court-martial handling analogous charges under the Uniform Code of
Military Justice and the federal Manual for Courts-Martial, but in no
case more than 180 days in confinement.
Summary courts-martial have power:
(a) To try enlisted members of the active militia unless they
(b) To adjudge any punishment authorized for a summary
court-martial handling analogous charges under the Uniform Code of
Military Justice and the federal Manual for Courts-Martial,
including, but not limited to, up to 30 days in confinement.
The Courts-Martial Appellate Panel shall have power over the
(a) The issuance of extraordinary writs relative to all matters
arising under the following:
(1) The provisions of this code.
(2) The Uniform Code of Military Justice.
(3) Any regulation issued by the Governor pertaining to members of
the California active militia.
(4) Court-martial actions pending before any military judge of the
California Military Department.
(b) Adjudicating appeals of sentences of a court-martial that have
been approved by the convening authority, as described in Section
455.1, and which include:
(1) Dismissal, in the case of a commissioned or warrant officer.
(2) Dishonorable discharge, in the case of an enlisted man or
(3) Bad-conduct discharge, in the case of an enlisted man or
(4) Forfeiture of all pay and allowances.
(5) Any confinement.
(c) The practices and procedures of the Courts-Martial Appellate
Panel shall follow the federal Manual for Courts-Martial described in
Section 102 and the California Manual for Courts-Martial.
With regard to any matter adjudicated by the Courts-Martial
Appellate Panel, the reported decisions of the United States Court of
Appeals for the Armed Forces shall have direct precedential
authority to such matters unless otherwise directed by the
Courts-Martial Appellate Panel. Precedential decisions of the
Courts-Martial Appellate Panel shall be posted in a conspicuous
The trial counsel of a general or special court-martial in the
National Guard shall prosecute in the name of the State.
If military authorities order the arrest by civil authorities of
military persons for trial before a military court, such arrested
persons can be admitted to bail by any civil magistrate within the
county wherein the arrest is made. The admission to, taking of and
release upon bail shall be in accordance with applicable provisions
and principles of the California Penal Code.
Each miliary court shall have the power of a superior court of
this State to compel by subpena, subpena duces tecum, and
attachment, the attendance of witnesses, both civilian and military,
and the production of books, papers, and documents, and to punish for
contempt a witness duly subpenaed for nonattendance or for refusal
to be sworn or testify or to produce books, papers, and documents.
Military courts may also take by commission the testimony of
witnesses who can not reasonably be produced at the trial in the same
manner as a superior court.
Commissions and subpenas may be issued by the president or the
trial counsel of the court, both before and after being sworn, for
witnesses whose attendance or testimony before such court may be
necessary in behalf of the prosecution, and upon application in
behalf of any person to be tried by such court, either the president
or the trial counsel may direct the commanding officer of any
organization to cause such subpena to be served on any member of his
A witness not appearing in obedience to a subpena when served
personally with a copy thereof, and not having sufficient excuse, or
a witness refusing to obey any lawful order of the court, shall
forfeit to the State the sum of twenty-five dollars. The president of
each court, or summary court officer, shall, from time to time,
report to the senior Judge Advocate on the State staff the names of
all such delinquent witnesses, together with the names and places of
residence of the persons serving such subpenas. A Judge Advocate may
sue for and recover such penalties in the name of the people of the
Military courts may issue all process and mandates, including
writs and warrants, necessary and proper to carry into full effect
the powers vested in those courts. Process or mandates may be
directed to the sheriff of any county, any peace officer, the police
of any city and the marshals of any town or city, or to any officer
or enlisted man or woman appointed by the court to serve or execute
process or mandates. All officers to whom process or mandates are
directed shall execute the process or mandates and make return of
their acts thereunder according to the requirements thereof.
The keepers or warden of any jail shall receive the bodies of
persons committed by the process or mandate of a military court and
confine them in the manner prescribed by law. Except as otherwise
specially provided in this division, no fees or charges of any nature
shall be demanded or required to be paid by the State, or any
military court or member thereof, or by the person executing its
mandate or process, or by any public officer for receiving,
executing, or returning any such process or mandate, or for any
service in connection therewith, or for receiving or confining the
person in jail or custody thereunder. Minors shall be confined in a
detention home or equivalent place of confinement, and shall not be
confined in a jail with other persons. Persons committed by the
process or mandate of a military court shall not be photographed or
fingerprinted unless such process or mandate expressly so directs.
Presidents of courts-martial, one-officer special
courts-martial, and summary court officers shall have power to issue
warrants to arrest an accused person and to bring him or her before
the court for trial. A court shall be ordered for his or her trial
within the time similarly prescribed by the rules and regulations of
the United States Army. If a copy of the charges and specifications
is not served, or a court is not ordered within the time herein
limited, the arrest shall cease, but the charges and specifications
may be served, a court ordered, and the officer or enlisted man or
woman be brought to trial after the release from arrest within the
time prescribed by the rules and regulations of the United States
Army in similar circumstances. The appearance of the accused, without
objection and pleading to the charges, shall be a waiver of any
defect or irregularity of service of any of the papers mentioned in
No sentence of a court-martial shall be carried into execution
until the proceedings have been reviewed and the sentence approved
by the officer appointing the court or by the officer commanding for
the time being.
For the purpose of collecting fines or penalties imposed by a
court-martial, the president of any general or special court-martial
and the summary court officer of any summary court shall make a list
of all fines and penalties and of the persons against whom they have
been imposed, and may thereafter issue a warrant under his or her
hand directed to any sheriff or marshal of the county, commanding him
or her to levy and collect the fines and penalties, together with
the costs, upon and out of the property of the person against whom
the fine or penalty is imposed. The warrant shall be executed and
renewed in the same manner as executions under the Code of Civil
All fines collected under this section or imposed and collected
under Section 450.1 shall be paid by the officer collecting them to
the commanding officer of the organization of which the person fined
is or was a member and shall be deposited by the commanding officer
into the General Fund.
Any person who is guilty of disorderly, contemptuous, or
insolent behavior in a military court, or who uses insulting,
contemptuous, or indecorous language or expression to or before a
military court, or any member of such court in open court, tending to
interrupt its proceedings or to impair the respect due to its
authority, or who commits any breach of the peace or makes any noise
or other disturbance directly tending to interrupt its proceedings,
may be committed by warrant under the hand of the president of the
court, or summary court officer, to the jail of the city or county in
which such court sits, there to be confined for a period not to
exceed three days.
A person who has been separated from the military service
shall be subject to the jurisdiction of a lawfully appointed
court-martial for trial and punishment for offenses committed during
his military service.
If such person is found guilty, he shall be punished according to
the Articles of War and the rules and regulations of the United
States Army within the limits prescribed by this division and the
Federal law for courts-martial of the National Guard.
When the military offense charged is also an offense by the
civil law of this State, the officer whose duty it is to order trial
may order the person charged to be turned over to the civil
authorities for trial; provided, such officer shall turn over such
person to the civil authorities in the cases described in Section
(a) A member of the active militia who, when subject to the
Uniform Code of Military Justice (UCMJ) as incorporated by this code,
violates a provision of the Penal Code for a sexual assault crime as
defined in subdivision (c), or an attempt of that offense, shall be
subject to prosecution by the office of the district attorney or
other equivalent civilian prosecutorial authority with appropriate
jurisdiction. The Military Department or California National Guard
may claim jurisdiction only under the UCMJ as incorporated by this
code, if the district attorney, or other equivalent civilian
prosecutorial authority, refuses to pursue a criminal prosecution of
(b) (1) Subject to subdivision (a), a member of the active militia
recommended for court-martial pursuant to an Article 32 hearing (10
U.S.C. Sec. 832), as authorized by the UCMJ as incorporated by this
code, for a qualifying sexual assault offense, as defined in
subdivision (d), shall be tried by general court-martial.
(2) Notwithstanding any other provision of the UCMJ as
incorporated by this code, a convening authority in the California
National Guard or in the Military Department, as authorized by the
UCMJ as incorporated by this code, shall not overturn a conviction
for a qualifying sexual assault offense issued by a general
court-martial. On appeal, the convening authority shall dispose of
the case in accordance with the decision of the Courts-Martial
Appellate Panel, as authorized by this code.
(3) A member of the active militia who is found guilty of a
qualifying sexual assault offense, or an attempt of that offense
shall be punished as the general court-martial may direct, subject to
Section 456, and that punishment shall include, at a minimum,
dismissal or dishonorable discharge.
(4) There is no statute of limitations for a member of the active
militia to be charged with a qualifying sexual assault offense, when
tried and punished by a general court-martial as provided in this
(c) For purposes of this section, "sexual assault crime" means
conduct constituting any of the crimes defined in the following
provisions of the Penal Code:
(1) Section 243.4 of the Penal Code.
(2) Chapter 1 (commencing with Section 261) of Title 9 of Part 1
of the Penal Code.
(3) Section 286 of the Penal Code.
(4) Subdivision (a) or (b), or paragraph (1) of subdivision (c),
of Section 288 of the Penal Code.
(5) Section 647.6 of the Penal Code.
(d) For purposes of this section, a "qualifying sexual assault
offense" under the Uniform Code of Military Justice is one that
violates any of the following provisions of that code, or an attempt
(1) Subdivision (a) or (b) of Article 120 (10 U.S.C. Sec. 920(a)
(2) Article 120b (10 U.S.C. Sec. 920b).
(3) Article 125 (10 U.S.C. Sec. 925).
(e) Sex offender registration requirements for state military
convictions contained in Sections 290 to 290.024, inclusive, of the
Penal Code, are applicable to persons convicted of a qualifying
sexual assault offense, or of the attempt or conspiracy to commit
Whenever any person in the military service of the State is
charged with the commission while on duty of an offense which is a
felony under the laws of this State, he shall be delivered by his
superior officer or officers to the proper civil authorities of the
county or city in which the offense occurred for trial. Trial and
punishment by civil authorities shall not preclude trial and
additional punishment by court-martial for any military offense
resulting from commission of the felony.
No officer by whom a military court is ordered or member of
any such military court, or officer or person acting under its
authority or reviewing the proceedings thereof or enforcing the
process or sentence thereof shall be liable civilly or criminally for
any act done in such capacity.
Courts for the Naval Militia are provided for by section 300.
The Adjutant General, under procedures established by him or
her and approved by the Governor, and acting through a board of
officers appointed by the Adjutant General, may correct any military
record of a member of the California National Guard when he or she
considers it necessary to correct an error or remove an injustice.