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H0147.........................................by TRANSPORTATION AND DEFENSE
MILITARY - Amends existing law relating to the state militia to provide
that certain members may demand trial by court-martial in lieu of
nonjudicial punishment; to delete a reference to notice of declared
emergency; to broaden authority of commanding officers to arrest certain
members of the Idaho military; to provide a procedure following arrest; to
delete reference to a probable cause finding that a member received
adequate notice of a declared emergency; to provide for issuance and
service of warrants; to provide for arrest and incarceration; to provide
for rules of procedure; and to provide that enforcement of the Idaho Code
of Military Justice shall conform as nearly as practicable to specified
rules and case precedent.
02/05 House intro - 1st rdg - to printing
02/06 Rpt prt - to Transp
02/07 Rpt out - rec d/p - to 2nd rdg
02/08 2nd rdg - to 3rd rdg
02/13 3rd rdg - PASSED - 64-2-4
AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Boe, Bolz,
Bradford, Bruneel, Campbell, Chase, Clark, Collins, Cuddy, Deal,
Denney, Ellis, Eskridge, Field(13), Field(20), Gagner, Gould, Hadley,
Hammond, Harwood, Henbest, Higgins, Hornbeck, Jaquet, Jones, Kellogg,
Kendell, Kunz, Lake, Langford, Loertscher, Mader, Marley, Meyer,
Montgomery, Mortensen, Moyle, Pearce, Pischner, Pomeroy, Raybould,
Ridinger, Roberts, Robison, Sali, Schaefer, Sellman, Shepherd, Smith,
Smylie, Stevenson, Stone, Swan, Tilman, Trail, Wheeler, Wood, Young
NAYS -- Crow, McKague
Absent and excused -- Callister, Ellsworth, Moss, Mr. Speaker
Floor Sponsor -- Bruneel
Title apvd - to Senate
02/14 Senate intro - 1st rdg - to St Aff
03/15 Rpt out - rec d/p - to 2nd rdg
03/16 2nd rdg - to 3rd rdg
03/20 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Boatright, Branch, Brandt, Bunderson, Burtenshaw,
Cameron, Danielson, Darrington, Davis, Deide, Dunklin, Frasure,
Geddes, Goedde, Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee,
Lodge, Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen,
Stegner, Stennett, Thorne, Wheeler, Whitworth, Williams,
NAYS -- None
Absent and excused -- None
Floor Sponsor -- Darrington
Title apvd - to House
03/21 To enrol
03/22 Rpt enrol - Sp signed - Pres signed - to Gov
03/23 Governor signed
Session Law Chapter 153
Effective: 07/01/01
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature First Regular Session - 2001
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 147
BY TRANSPORTATION AND DEFENSE COMMITTEE
1 AN ACT
2 RELATING TO STATE MILITIA; AMENDING SECTION 46-1107, IDAHO CODE, TO PROVIDE
3 THAT CERTAIN MEMBERS MAY DEMAND TRIAL BY COURT-MARTIAL IN LIEU OF NONJUDI-
4 CIAL PUNISHMENT AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION
5 46-1108, IDAHO CODE, TO STRIKE A REFERENCE TO NOTICE OF DECLARED EMER-
6 GENCY, TO BROADEN THE AUTHORITY OF COMMANDING OFFICERS TO ARREST CERTAIN
7 MEMBERS OF THE IDAHO MILITARY, TO PROVIDE FOR A PROCEDURE FOLLOWING
8 ARREST, TO STRIKE REFERENCE TO PROBABLE CAUSE FINDING THAT THE MEMBER
9 RECEIVED ADEQUATE NOTICE OF DECLARED EMERGENCY, TO PROVIDE FOR ISSUANCE
10 AND SERVICE OF WARRANTS, TO PROVIDE FOR ISSUANCE OF ARREST WARRANTS BY
11 CONVENING AUTHORITIES FOR PARTICULAR MILITARY PERSONNEL TO CERTAIN LAW
12 ENFORCEMENT OFFICERS, TO PROVIDE FOR ARREST AND INCARCERATION AND TO MAKE
13 A TECHNICAL CORRECTION; AND AMENDING SECTION 46-1124, IDAHO CODE, TO PRO-
14 VIDE FOR RULES OF PROCEDURE AND TO PROVIDE THAT ENFORCEMENT OF THE IDAHO
15 CODE OF MILITARY JUSTICE SHALL CONFORM AS NEARLY AS PRACTICABLE TO SPECI-
16 FIED RULES AND CASE PRECEDENT.
17 Be It Enacted by the Legislature of the State of Idaho:
18 SECTION 1. That Section 46-1107, Idaho Code, be, and the same is hereby
19 amended to read as follows:
20 46-1107. COMMANDING OFFICER'S NONJUDICIAL PUNISHMENT. (1) Any commanding
21 officer, not necessarily the accused's immediate commanding officer, may, in
22 addition to or in lieu of admonition or reprimand, impose one (1) or more of
23 the following disciplinary punishments for minor offenses punishable under
24 this code chapter, without the intervention of a court-martial. However,
25 except in the case of a member attached to or embarked on a vessel, punishment
26 may not be imposed upon any member under this chapter if the member has,
27 before the imposition of punishment, demanded trial by court-martial in lieu
28 of the punishment.
29 (a) Upon officers of his command:
30 (i) Restriction to certain specified limits, with or without sus-
31 pension from duty, for not more than seven (7) consecutive duty days
32 during any period or periods of duty;
33 (ii) If imposed by a general officer:
34 1. Restriction to quarters for not more than seven (7) consecu-
35 tive duty days during any period or periods of duty;
36 2. Restriction to certain specified limits, with or without
37 suspension from duty, for not more than fourteen (14) duty days
38 during any period or periods of duty;
39 3. Fine, not to exceed two hundred dollars ($200).
40 (b) Upon other personnel of his command:
41 (i) Reduction to the next inferior grade, if the grade from which
42 demoted is within the promotion authority of the officer imposing the
43 reduction or any officer subordinate to the one who imposes the
2
1 reduction;
2 (ii) Extra duties, including fatigue or other duties for not more
3 than seven (7) consecutive duty days during any period or periods of
4 duty;
5 (iii) Restriction to certain specified limits, with or without sus-
6 pension from duty for not more than seven (7) consecutive duty days
7 during any period or periods of duty;
8 (iv) Fine, not to exceed seventy-five dollars ($75.00);
9 (v) If imposed by a commander of the rank of major or above:
10 1. Reduction to the lowest or any intermediate pay grade, if
11 the grade from which demoted is within the promotion authority
12 of the officer imposing the reduction, but an enlisted member
13 above the grade of E-4 may not be reduced more than two (2)
14 grades;
15 2. Extra duties, including fatigue or other duties, for not
16 more than fourteen (14) consecutive duty days during any period
17 or periods of duty;
18 3. Restriction to certain specified limits, with or without
19 suspension from duty, for not more than fourteen (14) consecu-
20 tive duty days during any period or periods of duty;
21 4. Fine, not to exceed one hundred dollars ($100).
22 No two (2) or more of the punishments of extra duties and restrictions may be
23 combined to run consecutively in the maximum amount imposable for each. When-
24 ever any of those punishments are combined to run consecutively, there must be
25 an apportionment so that the total period for both punishments will not exceed
26 the maximum imposable for either punishment.
27 (2) The member shall be given written notification of a commander's
28 intention to impose punishment under this section and an opportunity to make a
29 personal presentation to the commander proposing to impose the punishment
30 prior to imposition of punishment and of his right to appeal within two (2)
31 duty days to the next higher authority.
32 (3) The officer who imposes the punishment authorized in subsection (1)
33 of this section, or his successor in command, may, at any time, suspend
34 probationally any part or amount of the unexecuted punishment imposed and may
35 suspend probationally a reduction in grade imposed under subsection (1) of
36 this section, whether or not executed. In addition, he may, at any time, remit
37 or mitigate any part or amount of the unexecuted punishment imposed and may
38 set aside in whole or in part the punishment, whether executed or unexecuted,
39 and restore all rights and privileges affected. When mitigating extra duties
40 to restriction, the mitigated punishment shall not be for a greater period
41 than the punishment originally imposed.
42 (4) A person punished under this section who considers his punishment
43 unjust or disproportionate to the offense may appeal to the next higher
44 authority by delivering written notice of the appeal within two (2) duty days
45 after receipt of written notification of the punishment. The appeal shall be
46 promptly decided, but the person punished shall not in the meantime be
47 required to undergo the punishment adjudged. The higher authority may exercise
48 the same powers with respect to the punishment imposed as may be exercised
49 under subsection (3) of this section by the officer who imposed the punish-
50 ment.
51 (5) The imposition and enforcement of disciplinary punishment under this
52 section for any act or omission shall not be a bar to trial by court-martial
53 for a serious offense growing out of the same act or omission, and not prop-
54 erly punishable under this section, but shall be considered in imposing any
55 sentence for a court-martial conviction arising out of the same act or omis-
3
1 sion.
2 (6) All records of nonjudicial punishment under this section shall be
3 destroyed upon the termination of the person's current period of enlistment or
4 after two (2) years of honorable service in the military without further dis-
5 ciplinary action under this section or a conviction by court-martial, which-
6 ever occurs first.
7 (7) The term "minor offenses," as used in this section, means any acts or
8 omissions constituting offenses under the punitive sections of this code chap-
9 ter, unless deemed to be a serious offense by the convening authority.
10 SECTION 2. That Section 46-1108, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 46-1108. ARREST. Arrest of members of the Idaho military not in federal
13 service by members of the Idaho military while acting in their military capac-
14 ity is prohibited, except in the following circumstances:
15 (1) If any member of the Idaho military fails or refuses to report to his
16 appointed place of duty, upon adequate notice of an emergency declared by the
17 governor, the his commanding officer of the member's unit is authorized to
18 arrest or cause to be arrested such member or cause him to be arrested and
19 have him brought before the commanding officer at his unit or organization
20 headquarters, whether such headquarters be located within or without the bord-
21 ers of the state. After such an arrest, the commanding officer is authorized
22 to transport, or cause to be transported, such member to his appointed place
23 of duty, whether within or without the borders of the state. Furthermore, if a
24 commander finds that probable cause exists to believe that a minor offense has
25 been committed by a member of his command, he may cause the member to be
26 arrested and brought before him for the purpose of processing nonjudicial pun-
27 ishment under section 46-1107, Idaho Code. If military personnel are not
28 available for the purpose of making the arrest, or if the commanding officer
29 ordering the arrest deems it advisable, he may issue a warrant, based upon a
30 finding that probable cause exists that the member has failed or refused to
31 report as ordered after receiving adequate notice of such order during a
32 declared emergency, to any sheriff or peace officer authorized to serve such
33 warrant in the same manner as other warrants of arrest, and such sheriff or
34 peace officer shall serve such warrants of arrest immediately, whenever prac-
35 ticable, and make return thereof to the commanding officer issuing the war-
36 rant.
37 (2) If any member of the Idaho military has had charges preferred against
38 him under this code chapter, and the convening authority to whom the charges
39 have been forwarded has found that probable cause exists that the offense was
40 committed by the accused and that the incarceration of the accused pending
41 court-martial is required because of special circumstances found to exist
42 which warrant such incarceration, then the convening authority is authorized
43 to arrest such member or cause him to be arrested and have him confined pend-
44 ing trial. If military personnel are not available for the purpose of making
45 the arrest, or if the convening authority deems it advisable, he may issue a
46 warrant to any sheriff or peace officer authorized to serve such warrant in
47 the same manner as other warrants of arrest, and said sheriff or peace officer
48 shall effect the arrest and hold the accused in the county jail of the county
49 in which the arrest is effected. Furthermore, if a commander finds that proba-
50 ble cause exists that a minor offense has been committed by a member of his
51 command, he may cause the member to be arrested and brought before him for the
52 purpose of processing nonjudicial punishment under section 46-1107, Idaho
53 Code. If military personnel are not available for the purpose of making the
4
1 arrest, or if the convening authority deems it advisable, he may issue a war-
2 rant to any sheriff or peace officer authorized to serve such warrant in the
3 same manner as other warrants of arrest, and said sheriff or peace officer
4 shall effect the arrest and hold the accused in the county jail of the county
5 in which the arrest is effected. The arresting officer shall return said war-
6 rant to the convening authority and notify him of the arrest and the location
7 of the arrestee so that the convening authority may further process the
8 charges against the accused. Upon receipt of the notification of arrest, the
9 commanding officer shall direct that the arrestee be retrieved and brought
10 before him within twenty-four (24) hours.
11 (3) If any member of the Idaho military is accused of an offense against
12 a civil authority, any other member of the Idaho military may, on request by
13 a civil authority, arrest such accused member, but in such case, immediate
14 steps must be taken to deliver such member forthwith to the appropriate civil
15 authorities.
16 SECTION 3. That Section 46-1124, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 46-1124. RULES OF PROCEDURE AND EVIDENCE. The military rules of evidence
19 prescribed by the president of the United States shall apply in all cases
20 tried under this code Enforcement of the Idaho code of military justice shall
21 conform as nearly as practicable to the rules of courts-martial, military
22 rules of evidence, and case precedent of the armed forces of the United
23 States, except where in conflict with other provisions of this chapter.
STATEMENT OF PURPOSE
RS 10571C1
This proposal amends four sections of the Idaho Code (I.C. 46-1107,
46-1108, and 46-1124) to clarify three issues of concern under the
Idaho Code of Military Justice, including:
1. 46-1107 Provides Guard Members with the option to decline
Commander's Nonjudicial punishment and demand trial by court-
martial;
2. 46-1108 Clarifies the arrest provisions for Guard members
that fail to report for military duties;
3. 46-1124 Clarifies rules and evidentiary issues under the
ICMJ, making them more full compliant with the federal rules
of the Armed Forces.
FISCAL IMPACT
There is no direct fiscal impact from this proposal.
CONTACT
Name: John Norris
Agency: Idaho Military Division
Phone: 422-5471
DFM: 190-06
Statement of Purpose/Fiscal Impact H 147