The Vermont Statutes Online

Title 20: Internal Security and Public Safety

Chapter 039: Courts-Martial

• Subchapter 001: GENERAL PROVISIONS

• § 941. Statement of policy on military justice

  An offense committed by a member of the National Guard shall be tried in civil courts and prosecuted by civil authorities except offenses of a purely military nature. This policy shall be executed and carried into effect at all times and applies to all encampments, armory drill periods, and parade periods in addition to any duty performed pursuant to sections 366 and 601 of this title. (Amended 1973, No. 223 (Adj. Sess.), § 11, eff. April 4, 1974; 2021, No. 10, § 50.)

• § 942. Military courts for the Vermont National Guard

  (a) Except in organizations in the service of the United States, military courts in the Vermont National Guard are of three kinds: general, special, and summary courts-martial.

  (b) When practicable considering finances, personnel, and administration, the military courts shall be constituted like similar courts provided for by the laws and regulations governing the U.S. Armed Forces and shall follow the forms and procedure prescribed for those courts. (Amended 1973, No. 223 (Adj. Sess.), § 12, eff. April 4, 1974; 2017, No. 113 (Adj. Sess.), § 127.)

• § 942a. Structure of courts-martial

  (a) General court-martial. A general court-martial of the Vermont National Guard shall be convened only by order of the Governor.

  (1) A general court-martial may try any person subject to the military code of Vermont for a crime made punishable by the military laws of the United States and the State, and may impose fines not exceeding $200.00, sentence forfeiture of pay and allowances, reprimand, dismiss or dishonorably discharge from the service, and reduce noncommissioned officers in rank. Any two or more punishments may be combined in the sentence imposed by the court.

  (2) The procedure by which a general court-martial shall function in view of the State’s lack of manpower, and shortage of places of confinement and finances, shall be in compliance with reasonable rules, adjusted to the peculiar characteristics of the State. The rules shall be formulated by the Adjutant and Inspector General, drafted by the Staff Judge Advocate, and approved by the Governor.

  (b) Special court-martial. The Adjutant and Inspector General or the commanding officer of a battalion or similar unit may appoint a special court-martial, but the special court-martial may in any case be appointed by superior authority when the superior authority considers the appointment desirable.

  (1) A special court-martial may try any person subject to the military code of Vermont, except a commissioned or warrant officer, for any crime of a purely military nature made punishable by military law of the United States or the State.

  (2) A special court-martial has the same powers of punishment as a general court-martial, except that a fine may not exceed $100.00.

  (c) Summary court-martial. The commanding officer of a unit may appoint a summary court to consist of one officer who may administer oaths and may try enlisted Guard members for breach of discipline and for minor violations of a military regulation governing the unit. The court, when satisfied of the guilt of the soldier, may fine him or her not exceeding $25.00 for any single offense, sentence to a reduction in rank, and declare not in excess of one month’s forfeiture of pay and allowances. The proceedings shall be informal.

  (d) Appeal from convictions. Any appeal from the sentence of a court-martial by the defendant shall be taken to the Adjutant and Inspector General.

  (1) The defendant shall file written notice of appeal within 30 days after the court’s finding of guilty.

  (2) The Adjutant and Inspector General with the assistance of the Staff Judge Advocate shall review all questions of law and fact.

  (3) The final decision in all appeals from the special and summary courts-martial are with the Adjutant and Inspector General. An appeal from the general court-martial conviction shall be reviewed by the Adjutant and Inspector General as provided in this subsection.

  (4) Within 60 days after being served with the written decision of the Adjutant and Inspector General, affirming in whole or in part the conviction, the defendant may appeal to the Governor, whose decision is final. (Added 1973, No. 223 (Adj. Sess.), § 13, eff. April 4, 1974; amended 2017, No. 113 (Adj. Sess.), § 128.)

• § 942b. Expenses of military courts

  (a) The expense incident to and connected with the holding of military courts in this State under this chapter shall be paid out of the General Fund under orders and rules issued by the Adjutant and Inspector General with the approval of the Governor.

  (b) All fines levied and collected under this section shall be paid to the State of Vermont for deposit in the State’s General Fund.

  (c) For each day of duty as a member of a general court-martial, or as a witness under summons from the President or Judge Advocate of the court, officers and enlisted Guard members shall be paid as provided in section 603 of this title.

  (d) The presiding officer, or recorder of a military board appointed to conduct an investigation or survey, or an officer detailed for that purpose may administer oaths to any witness attending to testify in the investigation.

  (e) All expenses incident to conduct of military boards shall be paid for upon proper vouchers drawn against the State’s General Fund.

  (f) If a member of the National Guard is prosecuted by civil or criminal action for an act performed or committed by him or her or an act caused, ordered, or directed by him or her to be done or performed in furtherance of and while in the performance of his or her military duty, the expenses of the defense of the action, civil or criminal, including attorney’s fees, witness fees for the defense, defendant’s court costs, and all costs for transcripts of records and abstracts on appeal by the defense, shall be paid out of the State’s General Fund. (Added 1973, No. 223 (Adj. Sess.), § 14, eff. April 4, 1974; amended 2017, No. 113 (Adj. Sess.), § 129.)

• § 943. Sentence; warrant for commitment

  Courts-martial, including summary courts, may sentence to confinement in lieu of fines imposed, provided that such sentence of confinement shall not exceed one day for each dollar of the fine. The warrant for commitment to the custody of the Commissioner of Corrections shall be substantially in the following form:

  STATE OF VERMONT, To any sheriff or constable in the State,

  .................... County, ss. } Greeting:

  WHEREAS ................................... of ................................... in the county of ........................... a (State rank) ........................... of (State organization) ................................... of the National Guard, was on the ........................... day of ......................... 20 ....... , by a court-martial duly appointed and acting under authority of law, adjudged guilty of a military offense, viz.: (describe the offense) and sentenced to pay a fine of ............... dollars and ............... cents. And whereas such sentence has been duly approved and such fine has not been paid or remitted, now therefore:

  BY THE AUTHORITY OF THE STATE OF VERMONT, you are hereby commanded to take the body of the said .......................... ........................................ and commit him or her to the custody of the Commissioner of Corrections, who is hereby commanded to receive the body of the said .................................................. and him or her safely keep for the term of .................... days, unless sooner discharged according to law.

  Fail not, but service and return make according to law.

  Dated at .................... in the county of ......................... this .................... day of ......................... 20 ....... .

  .........................................

  President of Court-Martial, or Summary Court.

  (Amended 1967, No. 345 (Adj. Sess.), § 30, eff. April 1, 1969; 2021, No. 10, § 51.)

• § 944. Execution of processes and sentences

  All processes and sentences of courts-martial shall be executed by civil officers of the State authorized to execute similar processes of the civil courts, and shall be returned to the court issuing the same. (Amended 2021, No. 10, § 52.)

• § 945. Rules of the National Guard

  All matters relating to the organization, government, and discipline of the National Guard, including nonjudicial punishment similar to that provided for in the Uniform Code of Military Justice, not otherwise provided for by the laws of the United States, this chapter, or regulations issued by the President shall be governed by rules adopted by the Adjutant and Inspector General and approved by the Governor, and the adopted rules shall have the same force and effect as though enacted in this chapter. (Added 1973, No. 223 (Adj. Sess.), § 16, eff. April 4, 1974; amended 2017, No. 113 (Adj. Sess.), § 130.)

• Subchapter 002: NONJUDICIAL DISCIPLINE

• § 961. Commanding officer nonjudicial discipline

  (a)(1) A commanding officer may impose nonjudicial discipline upon a service member for minor military offenses without the intervention of a court-martial in accordance with the provisions of this subchapter.

  (2) The commanding officer who intends to impose nonjudicial discipline upon a service member shall notify him or her of the following:

  (A) the nature of the alleged offense;

  (B) the commanding officer’s intent to dispose of the matter by nonjudicial discipline; and

  (C) any other nonjudicial discipline procedural rights established by rule.

  (3) As used in this section, “commanding officer” shall include an officer in charge.

  (b) A commanding officer may impose upon enlisted members of the officer’s command:

  (1) an admonition;

  (2) a reprimand;

  (3) for members who are serving on full-time military orders in excess of 179 days, the forfeiture of up to seven days of pay and, for all others, up to four days of pay;

  (4) a fine of not more than seven days’ pay;

  (5) a reduction to the next inferior pay grade, if the grade from which the member is demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;

  (6) extra duties for not more than 14 days, which need not be consecutive; and

  (7) restriction to certain specified limits, with or without suspension from duty, for not more than 14 days, which need not be consecutive.

  (c) A commanding officer of the grade of major or above may impose upon enlisted members of the officer’s command:

  (1) any discipline authorized in subdivisions (b)(1), (2), and (3) of this section;

  (2) for members who are serving on full-time military orders in excess of 179 days, the forfeiture of not more than one-half of one month’s pay per month for up to two months, and, for all others, up to 14 days of pay;

  (3) a fine of not more than one month’s pay;

  (4) a reduction to the lowest or any intermediate pay grade, if the grade from which the member is 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;

  (5) for members who are serving on full-time military orders in excess of 179 days, the imposition of extra duties for up to 45 days that need not be consecutive, and, for all others, the imposition of extra duties for up to 14 days that need not be consecutive; and

  (6) restriction to certain specified limits, with or without suspension from duty, for not more than 60 days that need not be consecutive.

  (d)(1) The Adjutant and Inspector General or an officer of a general or flag rank in command may impose:

  (A) upon an officer or warrant officer of the officer’s command, any discipline authorized in subdivisions (c)(1), (2), (3), and (6) of this section;

  (B) upon an enlisted member of the officer’s command, any discipline authorized in subsection (c) of this section.

  (2) The Adjutant and Inspector General or an officer of a general or flag rank in command may delegate his or her powers under this subsection to a principal assistant who is a member of the Vermont National Guard.

  (e) Whenever any disciplines imposed under this section are to be served consecutively, the total length of the combined discipline shall not exceed the authorized duration of the longest discipline in the combination, and there shall be an apportionment of disciplines so that no single discipline in the combination exceeds its authorized length.

  (f)(1) The officer who imposes the discipline or his or her successor in command may at any time suspend, set aside, mitigate, or remit any part or amount of the discipline and restore all rights, privileges, and property affected. The officer also may mitigate a reduction in grade to a forfeiture of pay or mitigate extra duties to a restriction to certain specified limits.

  (2) The mitigated discipline shall not be for a greater period than the original discipline mitigated. When mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture shall not be greater than the amount that could have been imposed initially under this section by the officer who imposed the discipline.

  (g) Whenever a discipline of forfeiture of pay is imposed under this section, the forfeiture may apply to pay accruing before, on, or after the date that discipline is imposed. (Added 2013, No. 124 (Adj. Sess.), § 2; amended 2017, No. 113 (Adj. Sess.), § 131; 2021, No. 10, § 53.)

• § 962. Service members subject to nonjudicial discipline

  (a) A service member subject to nonjudicial discipline under this subchapter shall, during the course of his or her disciplinary proceedings, have the right to:

  (1) consult with a judge advocate or with private counsel at the service member’s own expense;

  (2) submit matters in extenuation, mitigation, or defense; and

  (3) call and examine witnesses, to the extent witnesses are reasonably available.

  (b)(1) Except as provided in subdivision (2) of this subsection, a service member subject to nonjudicial discipline shall have the right to demand a court-martial in lieu of nonjudicial discipline.

  (2) A service member subject to nonjudicial discipline shall not have the right to demand a court-martial in lieu of nonjudicial discipline if the commanding officer will not impose a restriction to certain specified limits, a fine, or extra duties if, after a hearing, the service member is found guilty of any offense with which he or she is charged and the commanding officer advises the service member of that fact when the commanding officer notifies the service member of his or her intent to impose nonjudicial discipline.

  (c)(1) A service member subject to nonjudicial discipline under this subchapter may elect to have his or her case heard before a nonjudicial discipline panel, described in section 963 of this subchapter.

  (2) The service member shall have 24 hours from the commanding officer’s notice of his or her intent to dispose of the matter by nonjudicial discipline to make an election for disposition by a nonjudicial panel, and shall have the right to consult with a judge advocate or with private counsel at the service member’s own expense prior to making such a decision. (Added 2013, No. 124 (Adj. Sess.), § 2; amended 2021, No. 10, § 54.)

• § 963. Nonjudicial discipline panels

  (a) When a service member elects to have his or her case heard before a nonjudicial discipline panel as provided in section 962 of this subchapter, the panel shall be formed as follows:

  (1) The panel shall consist of three members, appointed by the next higher authority of the commanding officer who seeks to impose the nonjudicial discipline.

  (2) The members of the panel shall be officers who are senior to the service member requesting the panel. If it is an enlisted service member requesting the panel, there shall be at least one enlisted service member on the panel, but that enlisted service member must be senior to the enlisted service member requesting the panel.

  (3) The senior member of the panel shall be the chair. The most junior member shall be the recorder and shall record summaries of the proceedings.

  (4) If the nonjudicial discipline is being offered by a general officer, the panel shall consist of three members appointed by the Adjutant and Inspector General with the most senior member being the chair and the most junior member being the recorder, who shall record the summaries of the proceedings.

  (b) The panel decision shall be by majority vote. The panel shall have the same authority and responsibility in conducting the proceeding and disposing of the matter, including imposing nonjudicial discipline, as has a commanding officer of the grade of major or above pursuant to this subchapter.

  (c)(1) The panel shall forward its recommendation for disposition and imposition of discipline, if any, to the authority who appointed the panel under subsection (a) of this section.

  (2)(A) The appointing authority may approve the recommended discipline or any part or amount as the appointing authority sees fit and may suspend, mitigate, or remit the recommended discipline as he or she deems appropriate.

  (B) The appointing authority shall not approve any discipline in excess of that recommended by the panel. (Added 2013, No. 124 (Adj. Sess.), § 2.)

• § 964. Appeals from nonjudicial discipline decisions

  (a)(1) A service member disciplined under this subchapter who considers the discipline unjust or disproportionate to the offense may appeal to the next superior authority within 15 days after the discipline is either announced or notice of the discipline is sent to the accused, as the commander under section 961 or the appointing authority under section 963 of this subchapter may determine.

  (2) An appeal from the decision of an appointing authority under section 963 of this subchapter shall be taken directly to the next higher authority, unless the action is initiated by a general officer, in which case the Adjutant and Inspector General shall have the final decision.

  (b) The appeal shall be promptly forwarded and decided, but the service member disciplined may, in the meantime, be required to undergo the discipline adjudged.

  (c)(1) The superior authority may exercise the same powers with respect to the discipline imposed as may be exercised under section 961 or 963 of this subchapter by the officer who imposed the discipline, except that the superior authority shall not impose any discipline in excess of what was originally imposed.

  (2) Before acting on an appeal, the authority may refer the case to a judge advocate for consideration and advice. (Added 2013, No. 124 (Adj. Sess.), § 2.)

• § 965. Effect of nonjudicial discipline

  (a) The imposition and enforcement of nonjudicial discipline under this subchapter for any act or omission shall not be a bar to trial by court-martial or a civilian court of competent jurisdiction for a serious crime or offense growing out of the same act or omission and not properly punishable under this subchapter.

  (b) The fact that nonjudicial discipline has been enforced may be shown by the accused upon trial and, when so shown, it shall be considered in determining the measure of discipline to be adjudged in the event of a finding of guilty. (Added 2013, No. 124 (Adj. Sess.), § 2.)