Code of Virginia

Code of Virginia
Title 44. Military and Emergency Laws
10/27/2020

Article 4. National Guard Courts-Martial.

§ 44-42. Kinds of courts-martial; how constituted and powers.

In the National Guard not in federal service, there shall be special and summary courts-martial, constituted like similar courts of the army and the air force. They shall have the jurisdiction and powers, except as to punishments, and shall follow the forms and procedures provided for such courts as are enumerated in the Manual for Courts-Martial United States.

1930, p. 956; Michie Code 1942, § 2673(32); 1976, c. 399; 2011, cc. 572, 586.

§ 44-43. Repealed.

Repealed by Acts 2011, cc. 572 and 586, cl. 2.

§ 44-44. Special courts-martial.

A. In the National Guard for servicemembers on orders for duty under Title 32 of the United States Code or state active duty, the first commanding officer in the rank of colonel or above may convene special courts-martial.

B. A special court-martial may not try a commissioned officer.

C. A special court-martial shall have the authority to impose any of the following fines and penalties:

1. A fine of not more than $1,000;

2. Forfeiture of two-thirds pay per month for six months;

3. A reprimand;

4. Bad Conduct discharge;

5. Restriction to limits;

6. Imposition of extra duty;

7. Confinement for not more than three months;

8. Reduction of enlisted persons one or more pay grades; or

9. Any combination of these punishments.

1930, p. 956; Michie Code 1942, § 2673(34); 1958, c. 393; 1964, c. 227; 1976, c. 399; 1977, c. 74; 2011, cc. 572, 586.

§ 44-45. Summary courts-martial.

A. In the National Guard for servicemembers on orders for duty under Title 32 of the United States Code or active state duty, the first commanding officer in the rank of lieutenant colonel or above may convene a summary court-martial, consisting of one commissioned officer. Proceedings conducted under the provisions of this section shall be informal.

B. A summary court-martial shall have the authority to impose fines of not more than $500, to impose forfeitures of two-thirds pay for one month, to restrict to limits, to impose extra duty, to require confinement for not more than seven days, and to reduce enlisted persons one or more pay grades.

1930, p. 956; Michie Code 1942, § 2673(35); 1958, c. 393; 1964, c. 227; 1976, c. 399; 1977, c. 74; 2011, cc. 572, 586.

§ 44-46. Repealed.

Repealed by Acts 1977, c. 74.

§ 44-46.1. Military judges.

A military judge shall be a commissioned officer of the National Guard, shall be so assigned as a legal officer, shall be admitted to the practice of law, and shall be certified for such duty by the Adjutant General.

The Adjutant General shall designate a military judge on a case-by-case basis to preside over courts-martial of the Virginia National Guard.

1976, c. 399; 2011, cc. 572, 586.

§ 44-47. Process and procedure.

In the Virginia National Guard military judges whenever they sit on a military court, and otherwise presidents of courts-martial and summary court officers, shall have power to issue warrants to arrest accused persons and to bring them before the court for trial whenever such persons shall have disobeyed an order in writing from the convening authority to appear before such court, a copy of the charge or charges having been delivered to the accused with such order, and to issue commitments in carrying out sentences of confinement, and to issue subpoenas and subpoenas duces tecum, and to enforce by attachment attendance of witnesses and the production of books and papers, and to sentence for a refusal to be sworn or to answer as provided in actions before civil courts. They shall also have power to punish for contempt occurring in the presence of the court.

1930, p. 957; Michie Code 1942, § 2673(37); 1976, c. 399; 2011, cc. 572, 586.

§ 44-48. Review of judgments of courts-martial; procedure.

Judgments of special and summary courts-martial shall be subject to review by the Adjutant General only, except that sentences of Bad Conduct discharge shall also be subject to review by the Governor; and such judgments may be affirmed, set aside or modified; provided, however, no higher or greater sentence, punishment, penalty, fine or forfeiture than that imposed by the court-martial shall be approved; otherwise trials and proceedings, including nonjudicial punishment, pretrial proceedings, post-trial proceedings, search and seizure proceedings and proceedings by all courts and boards, including review proceedings, shall be in accordance with the Manual for Courts-Martial United States, as now existing or subsequently amended, procedure for courts of inquiry, and retiring boards, and other procedures under military law, as may from time to time be prescribed by the appropriate secretary of the respective services.

1930, p. 957; Michie Code 1942, § 2673(38); 1964, c. 227; 1976, c. 399; 2011, cc. 572, 586.

§ 44-49. Where sentences executed.

All sentences to confinement imposed by any military court of this Commonwealth shall be executed in such penal institutions of the Commonwealth as may be appropriate for similar terms of confinement sentenced for violations of criminal laws of the Commonwealth.

1930, p. 957; Michie Code 1942, § 2673(39); 1958, c. 393; 1964, c. 227; 1976, c. 399.

§ 44-50. How process and sentence executed.

All processes and sentences of any of the military courts of this Commonwealth shall be executed by any sheriff, deputy sheriff, sergeant, or police officer into whose hands the same may be placed for service or execution, and such officer shall make return thereof to the officer issuing or imposing the same. Such service or execution of process or sentence shall be made by such officer without tender or advancement of fee therefor, but all costs in such cases shall be paid from funds appropriated for military purposes. The actual necessary expenses of conveying a prisoner from one county or city in the Commonwealth to another, when the same is authorized and directed by the Adjutant General of the Commonwealth, shall be paid from the military fund of the Commonwealth upon a warrant approved by the Adjutant General.

1930, p. 957; Michie Code 1942, § 2673(40); 1958, c. 393; 1976, c. 399.

§ 44-51. Certificates.

Where any sentence to fine or imprisonment shall be imposed by any military court of this Commonwealth, it shall be the duty of the military judge whenever one sits on such court, and otherwise the president of the court or summary court officer, upon the approval of the findings and sentence of such court, to make out and sign a certificate entitling the case, giving the name of the accused, the date and place of trial, the date of approval of sentence, the amount of fine, or manner, place, and duration of confinement, and deliver such certificate to the sheriff, or deputy sheriff, sergeant or police officer of the county, city or town wherein the sentence is to be executed; and it shall thereupon be the duty of such officer to carry such sentence into execution in the manner prescribed by law for the collection of fines or commitments to service of terms of imprisonment in criminal cases determined in the courts of this Commonwealth.

1930, p. 957; Michie Code 1942, § 2673(41); 1958, c. 393; 1976, c. 399.

§ 44-52. Repealed.

Repealed by Acts 2011, cc. 572 and 586, cl. 2.

§ 44-53. Collection of fines.

For the purpose of collecting any fines or penalties imposed by a court-martial, the military judge whenever one sits on such court, and otherwise the president of the court, or the summary court officer, shall, within fifteen days after the fines or penalties have been imposed and approved, make a list of all the persons fined, describing them distinctly, and showing the sums imposed as fines or penalties on each person, and shall draw his warrant, under his official signature, directed to any marshal of the court, or to the sheriff, sergeant, or any policeman of any city or county, as the case may be, thereby commanding him to levy such fines or penalties, together with the costs, on the goods and chattels of such delinquent, and the warrant shall thereupon have the force and effect of fieri facias, but such delinquent shall not be entitled to the benefit of any exemption law of this Commonwealth, as against such warrant and the lien thereof. In default of sufficient personal property to satisfy the same, the officer executing the same shall make report accordingly to the drawing authority of the warrant which may then require the fined person to show whether or not he possesses sufficient property to satisfy the fine and if such property is found to exist and the fined person fails to deliver it over the executing officer shall be ordered to take the body of the delinquent and convey him to the jail of the city or county in which he may be found, whose jailer shall closely confine him without bail until the fine or penalty and jailer's fees be paid. No such imprisonment shall extend beyond the period of ten days.

1930, p. 958; Michie Code 1942, § 2673(44); 1976, c. 399; 1977, c. 74.

§ 44-54. Disposition of fines.

All fines imposed by courts-martial or other military courts, whether collected by such courts or by the civil authorities, shall be turned over by the courts or by the civil officer collecting the same to the Adjutant General, who shall keep an accurate account of the same. The Adjutant General, after deducting the costs of holding the courts and the collection of the fines, shall annually turn the balance in to the treasury of the Commonwealth, to be placed to the credit of the Literary Fund.

1930, p. 958; Michie Code 1942, § 2673(43); 1958, c. 393.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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