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.

(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 (10 U.S.C. § 801 et seq.) and the Manual for Courts-Martial of the United States.

(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.

(d) Any charge shall be prosecuted under 1 or more articles of the Uniform Code of Military Justice, except as specifically excluded by regulation of the Adjutant General. These articles, and the adopting regulations of the Adjutant General shall be of the same force and effect in any proceeding before any court-martial of this state as if the same had been enacted at length in this section.

(e) 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.

(f) The Adjutant General may appoint 1 or more officers of the Delaware National Guard who is/are qualified members of the Judge Advocate General Corps as "Military Judge for Court of Military Review" for the purpose of reviewing the legal sufficiency of any court-martial and making a recommendation to the Adjutant General as to final action on the court-martial proceedings.

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.;

(a) The 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; or

(6) Any combination of these punishments.

(c) Any sentence imposed by a general court-martial shall not become effective until approved by the Adjutant General.

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.;

(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.

(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.;

(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.

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.;

(a) When not in federal service, a general or special court-martial may, instead of imposing a fine or forfeiture, sentence to confinement for 1 day for each unit training assembly.

(b) Any sentence to incarceration by a general or special court-martial shall not be executed until approved by the Adjutant General.

(c) Any sentence to incarceration by a general or special court-martial shall be required to be served only when the service member is on regular duty on annual training or has already been activated for state service under subchapter V of this chapter.

(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.;

When not in federal service, 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.;

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 Delaware National Guard Courts-Martial 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 non-judicial punishment collected by the Adjutant General shall be paid over to the Delaware National Guard Courts-Martial 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.;

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, 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, Manual for Courts-Martial, United States, 1968, as amended, as adopted by regulation of the Delaware National Guard.

64 Del. Laws, c. 258, § 1.;