HOUSE BILL NO. 3404 103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE SCHULTE.
7146H.01I JOSEPH ENGLER, Chief Clerk
AN ACT To repeal sections 40.005, 40.007, 40.010, 40.015, 40.020, 40.023, 40.025, 40.030, 40.040, 40.050, 40.055, 40.060, 40.065, 40.079, 40.090, 40.108, 40.112, 40.114, 40.119, 40.124, 40.126, 40.130, 40.144, 40.153, 40.155, 40.175, 40.178, 40.195, 40.230, 40.237, 40.240, 40.250, 40.255, 40.260, 40.270, 40.276, 40.278, 40.280, 40.285, 40.290, 40.300, 40.305, 40.307, 40.310, 40.312, 40.315, 40.320, 40.325, 40.328, 40.330, 40.335, 40.340, 40.350, 40.355, 40.360, 40.365, 40.370, 40.375, 40.380, 40.385, 40.387, 40.390, 40.395, 40.398, 40.400, 40.405, 40.410, 40.420, 40.430, 40.440, 40.445, 40.450, 40.470, 40.475, 40.480, 40.485, 40.490, 40.495, 41.470, 41.730, 41.942, 105.265, 105.270, and 545.010, RSMo, and to enact in lieu thereof eighty new sections relating to the rights of persons ordered to perform military duty, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 40.005, 40.007, 40.010, 40.015, 40.020, 40.023, 40.025, 40.030, 2 40.040, 40.050, 40.055, 40.060, 40.065, 40.079, 40.090, 40.108, 40.112, 40.114, 40.119, 3 40.124, 40.126, 40.130, 40.144, 40.153, 40.155, 40.175, 40.178, 40.195, 40.230, 40.237, 4 40.240, 40.250, 40.255, 40.260, 40.270, 40.276, 40.278, 40.280, 40.285, 40.290, 40.300, 5 40.305, 40.307, 40.310, 40.312, 40.315, 40.320, 40.325, 40.328, 40.330, 40.335, 40.340, 6 40.350, 40.355, 40.360, 40.365, 40.370, 40.375, 40.380, 40.385, 40.387, 40.390, 40.395, 7 40.398, 40.400, 40.405, 40.410, 40.420, 40.430, 40.440, 40.445, 40.450, 40.470, 40.475, 8 40.480, 40.485, 40.490, 40.495, 41.470, 41.730, 41.942, 105.265, 105.270, and 545.010, 9 RSMo, are repealed and eighty new sections enacted in lieu thereof, to be known as sections 10 40.005, 40.007, 40.010, 40.015, 40.020, 40.023, 40.025, 40.030, 40.040, 40.050, 40.055,
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 3404 2
11 40.060, 40.065, 40.079, 40.090, 40.108, 40.112, 40.114, 40.119, 40.124, 40.126, 40.130, 12 40.144, 40.153, 40.155, 40.175, 40.178, 40.195, 40.230, 40.237, 40.240, 40.250, 40.255, 13 40.260, 40.270, 40.276, 40.278, 40.280, 40.285, 40.290, 40.300, 40.305, 40.307, 40.310, 14 40.312, 40.315, 40.320, 40.325, 40.328, 40.330, 40.335, 40.340, 40.350, 40.355, 40.360, 15 40.365, 40.370, 40.375, 40.380, 40.385, 40.387, 40.390, 40.395, 40.398, 40.400, 40.405, 16 40.410, 40.420, 40.430, 40.440, 40.445, 40.450, 40.470, 40.475, 40.480, 40.485, 40.495, 17 41.470, 41.732, and 545.010, to read as follows: 40.005. 1. As used in [sections 40.005 to 40.490] this chapter, unless the context 2 clearly otherwise requires: 3 (1) "Accuser" means a person who signs and swears to charges, any person who 4 directs that charges nominally be signed and sworn to by another, and any person who has an 5 interest other than an official interest in the prosecution of the accused; 6 (2) "Active state duty" means: 7 (a) Inactive duty training and active duty for training to include all duty and training 8 performed under Title 32, United States Code Sections 316, 502, 503, 504, and 505, Title 37 9 United States Code Section 206, 301, 309, 402, or 1002, to wit: unit training assemblies and 10 split unit training assemblies; equivalent training in lieu of unit training assemblies; aerial 11 flight duty; training or duty such as additional training assemblies, additional training or other 12 duty without pay; full-time training or other full-time duty; detail of rifle instructors for 13 civilians; participation in training and encampments, maneuvers, outdoor target practice, or 14 other exercises, and other duty or training performed under Title 32 U.S.C. 502(f), either with 15 or without pay; participation in encampments, maneuvers, outdoor target practice, or other 16 exercises for field or coast-defense instruction, independently of, or in connection with, the 17 Army; attendance at active component schools, conducting or attending National Guard 18 schools, or participation in small arms competition; and attendance at service schools and 19 routine practical instruction while attached to an active component; including travel to and 20 from such duties; and 21 (b) When ordered to active state duty by the governor under authority vested in the 22 governor by law, including travel to and from such duty; 23 (3) "Commanding officer" includes only commissioned officers; 24 (4) "Convening authority" includes, in addition to the person who convened the court, 25 a commissioned officer commanding for the time being, or a successor in command; 26 (5) "Costs" include service fees, witness fees, mileage, depositions, and costs of 27 confinement as those costs are enumerated in section 40.480 and as provided by law; 28 (6) "Duty status" includes active state duty and any other type of state military duty, 29 including travel to and from such duty; 30 (7) "Enlisted member" means any person serving in an enlisted grade; HB 3404 3
31 (8) "Grade" means a step or degree, in a graduated scale of office or military rank, 32 that is established and designated as a grade by law or regulation; 33 (9) "Hostile force" means enemy, rioters, looters, dissidents, and others opposing or 34 interfering with law and order; 35 (10) "Military" refers to any or all of the Armed Forces; 36 (11) "Military court" means a court-martial or a court of inquiry; 37 (12) "Military judge" means an official of a general or special court-martial detailed 38 in accordance with section 40.095; 39 (13) "Officer" means commissioned or warrant officer; 40 (14) "Rank" means the order of precedence among members of the state military 41 forces; 42 (15) "State judge advocate" means the commissioned officer responsible for 43 supervising the administration of the military justice in the state military forces, who shall be 44 the military staff judge advocate to the governor; 45 (16) "State military forces" means the National Guard of this state, as defined in 46 Sections 101(3) and 109 of Title 32, United States Code, and any other military force 47 organized under the laws of this state; 48 (17) "Superior commissioned officer" means a commissioned officer superior in rank 49 or command. 50 2. [Sections 40.005 to 40.490 apply] This chapter applies to all members of the state 51 military forces who are not in federal service. 40.007. 1. Each person subject to [sections 40.005 to 40.490] this chapter 2 discharged from the state military forces who is later charged with having fraudulently 3 obtained a discharge shall be subject to section 40.141, shall be subject to trial by court- 4 martial on that charge and shall, after apprehension, be subject to [sections 40.005 to 40.490] 5 this chapter while in the custody of the military for that trial. Upon conviction of that charge 6 such person is subject to trial by court-martial for all offenses under [sections 40.005 to 7 40.490] this chapter committed before the fraudulent discharge. 8 2. No person who has deserted from the state military forces may be relieved from 9 amenability to the jurisdiction of [sections 40.005 to 40.490] this chapter by virtue of a 10 separation from any subsequent period of service. 11 3. The fact that any person charged with an offense under [sections 40.005 to 40.490] 12 this chapter is separated from the service while proceedings are pending or while undergoing 13 sentence shall not affect the jurisdiction of any court-martial. 40.010. 1. Any commissioned officer subject to [sections 40.005 to 40.490] this 2 chapter, dismissed by order of the governor, may make a written application for trial by 3 court-martial setting forth, under oath, that he or she has been wrongfully dismissed. In such HB 3404 4
4 event, the governor, as soon as practicable, shall convene a general court-martial to try such 5 officer on the charges on which he or she was dismissed. A court-martial so convened shall 6 have jurisdiction to try the dismissed officer on such charge, and he or she shall be 7 considered to have waived the right to plead any statute of limitations applicable to any 8 offense with which he or she is charged. The court-martial may, as part of its sentence, 9 adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the 10 sentence adjudged, as finally approved or affirmed, does not include dismissal, the adjutant 11 general shall substitute for the dismissal ordered by the governor a form of discharge 12 authorized for administrative issue. 13 2. If the governor fails to convene a general court-martial within six months from the 14 presentation of an application for trial under this section, the adjutant general shall substitute 15 for the dismissal ordered by the governor a form of discharge authorized for administrative 16 issue. 17 3. If a discharge is substituted for a dismissal under [sections 40.005 to 40.490] this 18 chapter, the governor alone may reappoint the officer to the grade and rank as that former 19 officer would have attained had the officer not been dismissed. The reappointment of such a 20 former officer may be made only if a vacancy is available under applicable tables of 21 organization. All the time between the dismissal and the reappointment shall be considered as 22 actual service for all state purposes. 23 4. If an officer is discharged from the state military forces by administrative action or 24 by board proceedings under law or is dropped from the rolls by order of the governor, the 25 officer has no right to trial under this section. 40.015. 1. [Sections 40.005 to 40.490 apply] This chapter applies throughout this 2 state. [Such sections also apply] This chapter also applies to all persons otherwise subject to 3 [sections 40.005 to 40.490] this chapter while they are serving outside the state, and while 4 they are going to and returning from such service outside the state, in the same manner and to 5 the same extent as if they were serving inside the state. 6 2. Courts-martial and courts of inquiry may be convened and held in units of the state 7 military forces while those units are serving outside the state with the same jurisdiction and 8 powers as to persons subject to [sections 40.005 to 40.490] this chapter as if the proceedings 9 were held inside the state, and offenses committed outside the state may be tried and punished 10 either inside or outside the state. 40.020. 1. "Apprehension" is the taking of a person subject to [sections 40.005 to 2 40.490] this chapter into custody. 3 2. Any person authorized by [sections 40.005 to 40.490] this chapter or by 4 regulations issued under those sections, to apprehend persons subject to [sections 40.005 to 5 40.490] this chapter, any marshal of a court-martial appointed pursuant to the provisions of HB 3404 5
6 [sections 40.005 to 40.490] this chapter, and any peace officer authorized to do so by law, 7 may do so upon reasonable belief that an offense under [sections 40.005 to 40.490] this 8 chapter has been committed and that the person apprehended committed it. 9 3. Commissioned officers, warrant officers, and noncommissioned officers have 10 authority to quell quarrels, frays, and disorders among persons subject to [sections 40.005 to 11 40.490] this chapter and to apprehend persons subject to [sections 40.005 to 40.490] this 12 chapter who take part therein. 40.023. Any civil officer having authority to apprehend offenders under the laws of 2 the United States or of a state, territory, commonwealth, or possession, or the District of 3 Columbia, or any military officer subject to [sections 40.005 to 40.490] this chapter who has 4 been authorized by the governor by regulation may summarily apprehend any person subject 5 to [sections 40.005 to 40.490] this chapter who is absent without leave from the state 6 military forces and deliver him or her into the custody of the state military forces. If an 7 offender is apprehended outside the state, his or her return to the area must be in accordance 8 with normal extradition procedures or reciprocal agreement. 40.025. 1. "Arrest" is the restraint of a person by an order, not imposed as a 2 punishment for an offense, directing the person to remain within certain specified limits. 3 "Confinement" is the physical restraint of a person. 4 2. An enlisted member may be ordered into arrest or confinement by any 5 commissioned officer by an order, oral or written, delivered in person or through other 6 persons subject to [sections 40.005 to 40.490] this chapter or through any person authorized 7 by [sections 40.005 to 40.490] this chapter to apprehend persons. A commanding officer 8 may authorize warrant officers or noncommissioned officers to order enlisted members of his 9 or her command or subject to his or her authority into arrest or confinement. 10 3. A commissioned officer or warrant officer may be ordered apprehended or into 11 arrest or confinement only by a commanding officer to whose authority he is subject, by an 12 order, oral or written, delivered in person or by another commissioned officer. The authority 13 to order such persons apprehended or into arrest or confinement may not be delegated. 14 4. No person may be ordered apprehended or into arrest or confinement except upon 15 probable cause, and a written record of the facts and circumstances upon which probable 16 cause was made shall be kept. 17 5. This section does not limit the authority of persons authorized to apprehend 18 offenders to secure the custody of an alleged offender until proper authority may be notified. 40.030. 1. Any person subject to [sections 40.005 to 40.490] this chapter charged 2 with an offense under [sections 40.005 to 40.490] this chapter may be ordered into arrest or 3 confinement, as circumstances may require; but when charged only with an offense normally 4 tried by a summary court-martial, such person shall not ordinarily be placed in confinement. HB 3404 6
5 When any person subject to [sections 40.005 to 40.490] this chapter is placed in arrest or 6 confinement prior to trial, immediate steps shall be taken to inform the person of the specific 7 wrong of which he or she is accused and to try him or her or to dismiss the charges and 8 release him or her. 9 2. The convening authority of any court-martial shall have the power to issue 10 warrants of apprehension directed to the sheriff or police officer within the proper county to 11 apprehend persons subject to [sections 40.005 to 40.490] this chapter charged with an 12 offense under [sections 40.005 to 40.490] this chapter and to deliver such persons into the 13 custody of the state military forces. 14 3. In cases where the unit of which the accused is a member is not in a status of active 15 state duty or engaged in annual field training, such accused, if apprehended or ordered into 16 confinement prior to or during trial by a military court, may be admitted to bail by the officer 17 exercising special court-martial jurisdiction over him or her or by a superior commanding 18 officer, or the adjutant general. 40.040. 1. Under such regulations as may be prescribed under [sections 40.005 to 2 40.490] this chapter, a person subject to [sections 40.005 to 40.490] this chapter who is on 3 active state duty who is accused of an offense against civil authority may be delivered, upon 4 request, to the civil authority for trial. 5 2. When delivery under this section is made to any civil authority of a person 6 undergoing sentence of a court-martial and the delivery, if followed by conviction in a civil 7 tribunal, interrupts the execution of the sentence of the court-martial, and the offender, after 8 having answered to the civil authorities for the offense, shall, upon the request of competent 9 military authority, be returned to military custody for the completion of such sentence of the 10 court-martial. 40.050. 1. The three kinds of courts-martial in the state military forces are: 2 (1) General courts-martial, consisting of: 3 (a) A military judge and not less than twelve members; or 4 (b) Only a military judge, if before the court is assembled the accused, knowing the 5 identity of the military judge and after consultation with defense counsel, requests in writing a 6 court composed only of a military judge and the military judge approves; 7 (2) Special courts-martial, consisting of: 8 (a) Not less than twelve members; 9 (b) A military judge and not less than twelve members; or 10 (c) Only a military judge, if one has been detailed to the court, and the accused under 11 the same conditions as those prescribed in paragraph (b) of subdivision (1) of this subsection 12 so requests; 13 (3) Summary courts-martial, consisting of one commissioned officer. HB 3404 7
14 2. The Army National Guard and the Air National Guard each has court-martial 15 jurisdiction over all persons subject to [sections 40.005 to 40.490] this chapter. The exercise 16 of jurisdiction by the Army National Guard over Air Guard personnel, or the Air National 17 Guard over Army Guard personnel shall be in accordance with regulations prescribed by the 18 governor. 40.055. General courts-martial have jurisdiction to try persons subject to [sections 2 40.005 to 40.490] this chapter for any offense made punishable by [sections 40.005 to 3 40.490] this chapter and may, under such limitations as the governor may prescribe, adjudge 4 any of the following punishments: 5 (1) A fine of not more than two hundred dollars, or confinement not more than three 6 months, or both; 7 (2) Forfeiture of pay and allowances for a period not exceeding six months; 8 (3) A reprimand; 9 (4) Dismissal, dishonorable or bad conduct discharge; 10 (5) Reduction of a noncommissioned officer to any lower enlisted grade; or 11 (6) Any combination of these punishments; and 12 (7) Costs. 40.060. Special courts-martial shall have jurisdiction to try persons subject to 2 [sections 40.005 to 40.490] this chapter, except commissioned off