TITLE 20

Military and Civil Defense

Military

CHAPTER 1. DELAWARE NATIONAL GUARD

Subchapter IV. Courts-Martial and Sentences


(a) Courts-martial shall be of 3 kinds: general, special and summary. These courts shall be constituted like similar courts-martial of the Army and Air Force of the United States to the extent practicable.

(1) Convictions by general and special courts-martial will be recorded in accordance with § 8508 of Title 11 and the rules and regulations promulgated by the Delaware Justice Information System (DELJIS) Board of Directors.

(2) Any conviction by a summary court-martial or by nonjudicial punishment is not a criminal conviction and not reportable and shall not be transmitted pursuant to § 8508 of Title 11.

(b) These courts-martial shall have the jurisdiction and powers as specified in regulations adopted and promulgated by the Adjutant General that shall conform as far as practicable to the Uniform Code of Military Justice ("UCMJ") (10 U.S.C. § 801 et seq.) and the Manual for Courts-Martial of the United States so long as not inconsistent with the provisions of this subchapter.

(1) This subchapter applies to all members of the state military forces at all times even outside the State. Subject-matter jurisdiction under this subchapter is established if a nexus exists between an offense, either "military-only" or "military," and the state military force.

(2) The Punitive Articles (Part IV) of the Manual for Courts-Martial and Subchapter X of the UCMJ [10 U.S.C. § 877 et seq.], (collectively known as "Articles") constitute prosecutable offenses. Any offense prosecuted by a general or special court-martial shall constitute a misdemeanor offense. Any offense prosecuted by a summary court-martial or by nonjudicial punishment is not a criminal offense.

a. The term "military offense" means those offenses prescribed under Articles:

111 (Drunken or reckless operation of a vehicle, aircraft, or vessel) [10 U.S.C. § 911],

118 (Murder) [10 U.S.C. § 918],

119 (Manslaughter) [10 U.S.C. § 919],

120 (Rape and sexual assault generally) [10 U.S.C. § 920],

120a (Stalking) [10 U.S.C. § 920a],

120c (Other sexual misconduct) [10 U.S.C. § 920c],

121 (Larceny and wrongful appropriation) [10 U.S.C. § 921],

122 (Robbery) [10 U.S.C. § 922],

123 (Forgery) [10 U.S.C. § 923],

123a (Making, drawing, or uttering check, draft or order without sufficient funds) [10 U.S.C. § 923a],

124 (Maiming) [10 U.S.C. § 924],

126 (Arson) [10 U.S.C. § 926],

127 (Extortion) [10 U.S.C. § 927],

128 (Assault) [10 U.S.C. § 928],

129 (Burglary) [10 U.S.C. § 929],

130 (Housebreaking) [10 U.S.C. § 930], and

131 (Perjury) [10 U.S.C. § 931].

b. The term "military-only offense" means those offenses prescribed under Articles:

77 (Principals) [10 U.S.C. § 877],

78 (Accessory after the fact) [10 U.S.C. § 878],

80 (Attempts) [10 U.S.C. § 880],

81 (Conspiracy) [10 U.S.C. § 881],

82 (Solicitation) [10 U.S.C. § 882],

83 (Fraudulent enlistment, appointment, or separation) [10 U.S.C. § 883],

84 (Unlawful enlistment, appointment, or separation) [10 U.S.C. § 884],

85 (Desertion) [10 U.S.C. § 885],

86 (Absence without leave) [10 U.S.C. § 886],

87 (Missing movement) [10 U.S.C. § 887],

88 (Contempt toward officials) [10 U.S.C. § 888],

89 (Disrespect towards superior commissioned officer) [10 U.S.C. § 889],

90 (Assaulting or willfully disobeying superior commissioned officer) [10 U.S.C. § 890],

91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) [10 U.S.C. § 891],

92 (Failure to obey order or regulation) [10 U.S.C. § 892],

93 (Cruelty and maltreatment) [10 U.S.C. § 893],

94 (Mutiny or sedition) [10 U.S.C. § 894],

95 (Resistance, flight, breach of arrest, and escape) [10 U.S.C. § 895],

96 (Releasing prisoner without proper authority) [10 U.S.C. § 896],

97 (Unlawful detention) [10 U.S.C. § 897],

98 (Noncompliance with procedural rules) [10 U.S.C. § 898],

99 (Misbehavior before the enemy) [10 U.S.C. § 899],

100 (Subordinate compelling surrender) [10 U.S.C. § 900],

101 (Improper use of countersign) [10 U.S.C. § 901],

102 (Forcing a safeguard) [10 U.S.C. § 902],

103 (Captured or abandoned property) [10 U.S.C. § 903],

104 (Aiding the enemy) [10 U.S.C. § 904],

105 (Misconduct as prisoner) [10 U.S.C. § 905],

107 (False official statements) [10 U.S.C. § 907],

108 (Military property of United States — Loss, damage, destruction, or wrongful disposition) [10 U.S.C. § 908],

109 (Property other than military property of United States — Waste, spoilage, or destruction) [10 U.S.C. § 909],

110 (Improper hazarding of vessel) [10 U.S.C. § 910],

112 (Drunk on duty) [10 U.S.C. § 912],

112a. (Wrongful use, possession, etc., of controlled substances) [10 U.S.C. § 912a],

113 (Misbehavior of sentinel) [10 U.S.C. § 913],

114 (Dueling) [10 U.S.C. § 914],

115 (Malingering) [10 U.S.C. § 915],

116 (Riot or breach of peace) [10 U.S.C. § 916],

117 (Provoking speeches or gestures) [10 U.S.C. § 917],

132 (Frauds against the United States) [10 U.S.C. § 932],

133 (Conduct unbecoming an officer and a gentleman) [10 U.S.C. § 933],

134 (General article) [10 U.S.C. § 934], and

Any other offense listed under the Articles without a civilian equivalent.

c. The Articles and the implementing regulations adopted by the Adjutant General shall be of the same force and effect as if they had been set forth at length in this section.

(3) When an act or omission constitutes a violation of both this subchapter and another law of Delaware or local, municipal law or ordinance foreign or domestic, a court-martial may be initiated only after the Attorney General or other civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached.

(c) These courts shall use the forms and procedures as established for similar courts of the Army and Air Force of the United States, as adopted by regulation by the Adjutant General and which regulations shall conform as far as practicable to the UCMJ (10 U.S.C. § 801 et seq.) and the Manual for Courts-Martial of the United States.

(d) The Adjutant General may designate 1 or more officers of the Delaware National Guard who is/are qualified members of the Judge Advocate General Corps as "Military Judge" for state military justice purposes.

(e) The Delaware National Guard Judge Advocate General Corps shall have responsibility to prosecute military offenses and military-only offenses in a trial by courts-martial. Members of the Delaware National Guard Judge Advocate General Corps must be members in good standing of the bar of the highest court of a state and certified or designated as a judge advocate in the Judge Advocate General's Corps of the Army, Air Force, Navy, Marine Corps, or Coast Guard, or a reserve component of one of these.

(f) Any person convicted of a military offense or a military-only offense in a court-martial pursuant to this section may appeal a final decision of a general or special courts-martial to the Delaware Superior Court in accordance with the laws of Delaware. A decision of a general or special courts-martial becomes final on the date a sentence is acted upon as specified in §§ 152 and 155 of this title, or, when approval of the Governor is also required as specified in § 156 of this title, on the latter date that the Governor approves the sentence. In accordance with Rule 39(a) of the Rules of Criminal Procedure for the Superior Court of the State of Delaware, all appeals to the Delaware Superior Court shall be taken within 15 days from the date the general or special courts-martial decision becomes final. In addition to the time restriction in Rule 39(a) of the Rules of Criminal Procedure for the Superior Court of the State of Delaware, Rule 39(c) "On the record," and (h) "Dismissal" shall apply in any appeal of a general or special courts-martial. If, however, the Delaware Adjutant General was not the convening authority of a special court-martial, the defendant must first appeal the decision of a special court-martial to the Delaware Adjutant General within 15 days of the date the convening authority acts upon the sentence, and once the Delaware Adjutant General has rendered a final decision, may further appeal to the Delaware Superior Court in accordance with the laws of Delaware.

Code 1915, § 310; 32 Del. Laws, c. 22, § 1; 33 Del. Laws, c. 46, § 1; Code 1935, § 273; 20 Del. C. 1953, § 151; 64 Del. Laws, c. 258, § 1; 68 Del. Laws, c. 108, § 1; 72 Del. Laws, c. 106, § 10; 81 Del. Laws, c. 40, § 1.;

(a) The Governor or Adjutant General may convene a general court-martial by appropriate order.

(b) A general court-martial may impose a sentence of:

(1) A fine of not more than the member's pay and allowances for 24 unit training assemblies;

(2) Forfeiture of the member's pay and allowances for up to 24 unit training assemblies;

(3) A reprimand;

(4) Dismissal, dishonorable discharge or a bad conduct discharge;

(5) Reduction of any noncommissioned officer or enlisted person to any rank;

(6) A sentence of confinement in accordance with the limitations set forth in § 155 of this title; or

(7) Any combination of these punishments.

(c) Any sentence imposed by a general court-martial shall not become effective until acted upon by the Adjutant General in accordance with the Manual for Courts-Martial of the United States.

Code 1915, § 310A; 33 Del. Laws, c. 46, § 1; Code 1935, § 274; 20 Del. C. 1953, § 152; 64 Del. Laws, c. 258, § 1; 72 Del. Laws, c. 106, § 11; 81 Del. Laws, c. 40, § 1.;

(a) A commander of the rank of O-6 (Colonel), the commander of any other unit specifically designated by the Adjutant General, the Assistant Adjutant General for the Army National Guard, the Assistant Adjutant General for the Air National Guard and the Adjutant General may convene a special court-martial by appropriate order.

(b) A special court-martial may impose any sentence authorized for a general court-martial, including a bad-conduct discharge, except that fines and forfeiture are limited to 12 unit training assemblies.

(c) Any sentence imposed by a special court-martial shall not become effective until acted upon by the convening authority in accordance with the Manual for Courts-Martial of the United States .

(d) A special court-martial shall have jurisdiction to try any member of the Delaware National Guard.

Code 1915, § 310B; 33 Del. Laws, c. 46, § 1; Code 1935, § 275; 20 Del. C. 1953, § 153; 64 Del. Laws, c. 258, § 1; 68 Del. Laws, c. 108, § 2; 72 Del. Laws, c. 106, § 12; 81 Del. Laws, c. 40, § 1.;

(a) A commander of any unit of the Delaware National Guard may be appropriate order convene a summary court-martial consisting of 1 officer.

(b) A summary court-martial may impose a sentence of:

(1) A fine of not more than the member's pay and allowances for 4 unit training assemblies.

(2) Forfeiture of the member's pay and allowances for up to 4 unit training assemblies.

(3) Reduction of any noncommissioned officer or enlisted person to any rank within the promotional authority of the appointing authority; or

(4) Any combination of these punishments.

(c) Any sentence imposed by a summary court-martial shall not become effective until acted upon by the convening authority in accordance with the Manual for Courts-Martial of the United States.

Code 1915, § 310C; 33 Del. Laws, c. 46, § 1; Code 1935, § 276; 20 Del. C. 1953, § 154; 64 Del. Laws, c. 258, § 1; 72 Del. Laws, c. 106, § 13; 81 Del. Laws, c. 40, § 1.;

(a) When not in federal service under Title 10 of the United States Code, the punishment which a court-martial may direct for an offense shall not exceed such limits as prescribed by the Uniform Code of Military Justice (UCMJ) subject to the limitations in this section.

(b) For all offenses, the penalty shall be as provided in the UCMJ except that the maximum sentence of confinement shall not exceed 1 year.

(c) Any sentence to incarceration by a general or special court-martial shall not be executed until acted upon by the convening authority in accordance with the Manual for Courts-Martial of the United States.

(d) The Department of Correction shall receive and confine all military offenders committed to its custody by order of court-martial approved by the Adjutant General.

Code 1915, § 310D; 33 Del. Laws, c. 46, § 1; Code 1935, § 277; 20 Del. C. 1953, § 155; 64 Del. Laws, c. 258, § 1; 72 Del. Laws, c. 106, § 14; 81 Del. Laws, c. 40, § 1.;

When not in federal service under Title 10 of the United States Code, sentence of dismissal or dishonorable or bad conduct discharge from the service imposed by court-martial shall not be executed until approved by the Governor.

Code 1915, § 310E; 33 Del. Laws, c. 46, § 1; Code 1935, § 278; 20 Del. C. 1953, § 156; 64 Del. Laws, c. 258, § 1; 81 Del. Laws, c. 40, § 1.;

The President, Military Judge, or Summary Court Officer of any court-martial convened under this title may:

(1) Issue warrants, subpoenas or subpoenas duces tecum to compel appearance at a court-martial or to enforce the Court's judgments.

(2) Issue such other process as is necessary to exercise the Court's jurisdiction.

(3) Punish persons subject to the Delaware Code of Military Justice for contempt of court under the procedures of the Uniform Code of Military Justice; provided, however, that no punishment imposed may exceed that authorized for violation of § 1271 of Title 11.

Any warrant or subpoena under this section may be served or executed by the Sheriff, any constable, law-enforcement officer, military policeman or provost marshal designated for this purpose.

Code 1915, § 310F; 33 Del. Laws, c. 46, § 1; Code 1935, § 279; 20 Del. C. 1953, § 157; 64 Del. Laws, c. 258, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 106, § 15.;

(a) Any member of the Delaware National Guard who fails to obey a subpoena issued by a court-martial shall be punished by the court-martial under the terms of the Uniform Code of Military Justice as adopted by regulation of the Delaware National Guard.

(b) Any person not a member of the Delaware National Guard who wilfully fails to obey a subpoena issued by a court-martial shall be guilty of criminal contempt of court under § 1271(3) of Title 11.

Code 1915, § 310I; 33 Del. Laws, c. 46, § 1; Code 1935, § 282; 20 Del. C. 1953, § 158; 64 Del. Laws, c. 258, § 1; 72 Del. Laws, c. 106, § 16.;

(a) Upon approval of the sentence of any court-martial to pay a fine by the court-martial convening authority, the fine so imposed shall be immediately due and payable to the State of Delaware General Fund, through the commander of the member's unit to be forwarded to the Adjutant General.

(b) Any fine or forfeiture imposed by sentence of court-martial or nonjudicial punishment collected by the Adjutant General shall be paid over to the Delaware National Guard Central Fund.

Code 1915, § 310G; 33 Del. Laws, c. 46, § 1; 37 Del. Laws, c. 35, § 1; Code 1935, § 280; 20 Del. C. 1953, § 159; 64 Del. Laws, c. 258, § 1; 72 Del. Laws, c. 106, § 17; 81 Del. Laws, c. 40, § 1.;

Whoever, being a sheriff, constable or prison warden neglects or refuses to:

(1) Execute any process, or

(2) Make proper return of all fines and penalties collected,

shall be fined $100 for each such offense for the use of this State.

Code 1915, § 310K; 33 Del. Laws, c. 46, § 1; Code 1935, § 284; 20 Del. C. 1953, § 162; 64 Del. Laws, c. 258, § 1.;

Any commanding officer of the Delaware National Guard, not in federal service under Title 10 of the United States Code, may, in addition to or in lieu of admonition or reprimand, impose nonjudicial punishment in a like manner and to the extent prescribed by Article 15 of the Uniform Code of Military Justice [10 U.S.C. § 815] and the Manual for Courts-Martial, United States, 2012, as amended, as adopted by regulation of the Delaware National Guard.

64 Del. Laws, c. 258, § 1; 81 Del. Laws, c. 40, § 1.;