Chapter 5924: CODE OF MILITARY JUSTICE

5924.01 Code of military justice definitions.

As used in Chapter 5924. of the Revised Code unless the context otherwise requires:

(A) "Organized militia" means the Ohio national guard, the Ohio naval militia, and the Ohio military reserve.

(B) "Officer" means commissioned or warrant officer.

(C) "Commissioned officer" includes a commissioned warrant officer.

(D) "Commanding officer" includes only commissioned or warrant officers in command of a unit.

(E) "Superior commissioned officer" means a commissioned officer superior in rank or command.

(F) "Enlisted member" means a person in an enlisted grade.

(G) "Grade" means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation.

(H) "Rank" means the order of precedence among members of the armed forces.

(I) " State active duty" means full-time duty in the active military service of the state under a proclamation of the governor issued pursuant to authority vested in the governor by law, and while going to and returning from such duty.

(J) "Duty status other than state active duty" means any other types of duty and while going to and returning from such duty.

(K) "Military court" means a court-martial, a court of inquiry, or a provost court.

(L) "Military judge" means an official of a general or special court-martial who is a commissioned officer, who has been duly certified to be qualified for duty as a military judge by the state judge advocate, and who has been properly detailed in accordance with section 5924.26 of the Revised Code.

(M) "Law specialist" means a commissioned officer of the organized naval militia of the state designated for special duty.

(N) "Legal officer" means any commissioned officer of the organized naval militia of the state designated to perform legal duties for a command.

(O) "State judge advocate" means the commissioned officer responsible for supervising the administration of military justice in the organized militia.

(P) "Accuser" means a person who reports an offense subject to trial by court-martial and who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, or any other person who has an interest other than an official interest in the prosecution of the accused.

(Q) "Military" refers to any or all of the armed forces.

(R) "Convening authority" includes, in addition to the person who convened the court, a commissioned officer commanding for the time being, or a successor in command.

(S) "May" is used in a permissive sense. The words "no person may ............" mean that no person is required, authorized, or permitted to do the act prescribed.

(T) "Shall" is used in an imperative sense.

(U) "Code" means the Ohio code of military justice, as set forth in Chapter 5924. of the Revised Code.

(V) "Trial counsel" means the prosecuting attorney in a general or special court-martial.

(W) "Detention facility" means any place that is owned or operated by a municipal corporation, by a county, or by one or more municipal corporations, counties, or both and that is used for the confinement of persons charged with or convicted of any crime in this state or another state or under the laws of the United States.

(X) "Examiner" has the same meaning as in division (A)(2)(a) of section 2945.37 of the Revised Code.

(Y) "Nonsecured status," "unsupervised, off-grounds movement," "trial visit," "conditional release," and "licensed clinical psychologist" have the same meanings as in section 2945.37 of the Revised Code.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 09-23-1985

5924.02 Persons subject to code.

The following persons who are not in federal service are subject to this code:

(A) Members of the organized militia, including Ohio national guard dual-status technicians during their normal duty hours;

(B) Persons who have been placed on the state retired list pursuant to section 5913.07 or 5919.13 of the Revised Code;

(C) All other persons lawfully ordered to duty in the organized militia, from the dates they are required by the terms of the order or other directive to obey the order or directive, including any time during which they are going to or returning from duty in the organized militia.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.03 Jurisdiction to court-martial discharged personnel.

(A) Each person discharged from the organized militia who is later charged with having fraudulently obtained the discharge is, subject to section 5924.43 of the Revised Code, subject to trial by court-martial on that charge and is, after apprehension, subject to this code while in the custody of the military for that trial. Upon conviction of that charge the person is subject to trial by court-martial for all offenses under this code committed before the fraudulent charge.

(B) No person who has deserted from the organized militia may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any later period of service.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.04 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.05 Territorial applicability.

(A) This code applies throughout the state. It also applies to all persons otherwise subject to this code while they are serving outside the state, and while they are going to and returning from such service outside the state, in the same manner and to the same extent as if they were serving inside the state.

(B) Courts-martial and courts of inquiry may be convened and held in units of the organized militia while those units are serving outside the state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state.

Effective Date: 10-10-1961

5924.06 State judge advocate; subordinate judge advocates and legal officers.

(A) The adjutant general shall appoint an officer of the Ohio national guard as state judge advocate . The officer shall be a member in good standing of the bar of this state and be eligible to be recognized as a colonel under regulations prescribed by the national guard bureau.

(B) The adjutant general shall appoint judge advocates and legal officers on the recommendation of the state judge advocate. Judge advocates and legal officers shall be officers of the organized militia and members in good standing of the bar of this state.

(C) The state judge advocate or subordinate judge advocates shall make frequent inspections in the field in supervision of the administration of military justice.

(D) Convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in matters relating to the administration of military justice . A staff judge advocate or legal officer of a command is entitled to communicate directly with any staff judge advocate or legal officer of a superior or subordinate command, or with the state judge advocate.

(E) No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer, or who has been a witness for either the prosecution or defense, in any case may later act as staff judge advocate or legal officer to any reviewing authority upon the same case.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.07 Apprehension.

(A) Apprehension is the taking of a person into custody.

(B) Any person authorized by this code, or by regulations issued pursuant to this code, to apprehend persons subject to this code, any marshal of a court-martial appointed pursuant to the provisions of this code, and any peace officer authorized to do so by law may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it.

(C) Commissioned officers, warrant officers, and noncommissioned officers may take reasonable action to quell quarrels, frays, and disorders among persons subject to this code and to apprehend persons subject to this code who take part therein.

(D) A person subject to this code may be apprehended in the person's home, with the assistance of a local law enforcement agency, only upon probable cause to believe that the person is legally subject to apprehension and that the person is or will be present to be apprehended.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.08 Authority to apprehend deserters.

A peace officer having authority to apprehend offenders under the laws of the United States, or of a state, territory, commonwealth, or possession, or the District of Columbia may summarily apprehend a deserter from the organized militia and deliver the deserter into the custody of the organized militia.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.09 Arrest or confinement.

(A) Arrest is the restraint of a person by an oral or written order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits. Confinement is the physical restraint of a person that is imposed by order of competent authority and deprives the person of freedom pending disposition of criminal charges.

(B) An enlisted member may be ordered into arrest or confinement by any commanding officer by an order, oral or written, delivered in person or through other persons subject to this code or through any person authorized by this code to apprehend persons. A commanding officer may authorize warrant officers or noncommissioned officers to order enlisted members of the commanding officer's command or enlisted members subject to the commanding officer's authority into arrest or confinement.

(C) A commissioned officer or a warrant officer may be ordered apprehended or into arrest or confinement only by a commanding officer to whose authority the commissioned officer or warrant officer is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons apprehended or into arrest or confinement may not be delegated.

(D) No person may be ordered apprehended or into arrest or confinement except for probable cause.

(E) Nothing in this section shall be construed to limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.10 Confinement.

(A) Any person subject to this code charged with an offense under this code shall be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, such person shall not ordinarily be placed into confinement. When any person subject to this code is placed into arrest or confinement prior to trial, the person shall be informed within seventy-two hours of the specific wrong of which the person is accused and of the person's rights under this code.

(B) Confinement , whether before, during, or after trial by a military court, shall be , to the maximum extent practicable, in civil jails or like facilities. An order that an accused person be placed in pretrial confinement shall be reviewed by a military judge within seven days and if confirmed may be reviewed after that confirmation only on motion.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-06-1994

5924.11 Prisoners.

(A) No sheriff, keeper, or officer of a detention facility may refuse to receive or keep any prisoner committed to the sheriff's, keeper's, or officer's charge when the committing person furnishes a statement, signed by the committing person, of the offense charged against the prisoner.

(B) A sheriff, keeper, or officer of a detention facility to whose charge a prisoner is committed shall within twenty-four hours after that commitment report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-06-1994

5924.12 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.13 Arrest and confinement.

No person, while being held for or after trial , may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person. The arrest or confinement imposed upon the person shall not be any more rigorous than the circumstances require to insure the person's presence . The person may be subjected to minor punishment during that period for infractions of discipline.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.14 Delivery to civil authority for trial.

(A) Under such regulations as may be prescribed under this code, a person on state active duty or duty under Title 32 of the United States Code who is accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial.

(B) When delivery under this section is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for the offender's offense shall, upon the request of competent military authority, be returned to military custody for the completion of the offender's sentence.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.15 Nonjudicial punishment.

(A) Under such regulations as the adjutant general may prescribe, limitations may be placed on the powers granted by this section with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this section to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon such a demand. However, except in the case of a member attached to, or embarked in a vessel, punishment may not be imposed upon a member of the organized militia if the member has, before the imposition of the punishment, demanded trial by court-martial in lieu of the punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized under this section. If authorized by regulations prescribed under this section, the governor or a general officer or officer of flag rank in command may delegate the powers of the governor or general officer under this section to a principal assistant. In all proceedings, the accused shall be allowed a reasonable period of time, normally not exceeding forty-eight hours, to reply to the notification of intent to impose punishment under this section.

(B) Subject to division (A) of this section, any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following punishments for minor offenses without the intervention of a court-martial:

(1) Upon officers of the commanding officer's command, any of the following:

(a) Restriction to certain specified limits, with or without suspension from duty, for not more than thirty days;

(b) If imposed by the governor, the adjutant general, an officer exercising general court-martial jurisdiction, a general officer, or a flag officer, any of the following:

(i) Arrest in quarters for not more than thirty days;

(ii) Forfeiture of not more than one-half of one month's pay per month for two months or a fine of not more than two hundred fifty dollars;

(iii) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty days

.

(2) Upon other military personnel of the commanding officer's command, any of the following:

(a) Correctional custody for not more than seven days;

(b) Forfeiture of not more than seven days' pay or a fine of not more than one-quarter of one month's actual pay;

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

(d) Extra duties, including fatigue or other duties, for not more than fourteen consecutive days or for a total of thirty nonconsecutive days;

(e) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen days;

(f) If imposed by an officer of the grade of major or above , any of the following:

(i) The punishment authorized under division (B) (2)(a) of this section;

(ii) Correctional custody for not more than thirty days;

(iii) Forfeiture of not more than one-half of one month's pay per month for two months or a fine of not more than one-half of one month's actual pay for two months;

(iv) Reduction to the lowest or any intermediate pay grade, if the grade from which 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 pay grade above E-4 may not be reduced more than one pay grade;

(v) Extra duties, including fatigue or other duties, for not more than forty-five days, which need not be consecutive, and for not more than two hours per day;

(vi) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty days, which need not be consecutive

.

(C) No two or more of the punishments of arrest in quarters, correctional custody, extra duties, and restriction may be combined to run consecutively in the maximum amount imposable for each. If any of those punishments are combined to run consecutively, there must be apportionment. For the purposes of this section, "correctional custody" means the physical restraint of a person during duty or nonduty hours and may include extra duties, fatigue duties, or hard labor.

(D) An officer in charge may impose upon enlisted members assigned to the unit of which the officer is in charge any of the punishments authorized under divisions (A)(2)(a) to (f) of this section that the governor or adjutant general may specifically prescribe by regulation.

(E) The officer who imposes the punishment authorized in division (B) of this section, or the officer's successor in command, may, at any time, suspend probationally any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture or fine imposed under division (B) of this section, whether or not executed. In addition, the officer who imposed the punishment may, at any time, remit or mitigate any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges, and property affected. The officer who imposed the punishment may also mitigate reduction in grade to forfeiture of pay or a fine. When mitigating

arrest in quarters to restriction

or

extra duties to restriction

, the mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating reduction in grade to fine or forfeiture of pay, the amount of the fine or forfeiture shall not be greater than the amount that could have been imposed initially under this section by the officer who imposed the punishment mitigated.

(F) A person punished under this section who considers the punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority within seven calendar days. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under division (E) of this section by the officer who imposed the punishment. Before acting on an appeal from a punishment of

any of the following, the authority who is to act on the appeal shall refer the case to a judge advocate or legal officer of the Ohio organized militia for consideration and advice and may also refer the case upon appeal from any punishment imposed under division (B) of this section:

(1) Arrest in quarters for more than seven days;

(2) Correctional custody for more than seven days;

(3) Fine or forfeiture of more than seven days' pay;

(4) Reduction of one or more pay grades from the fourth or a higher pay grade;

(5) Extra duties for more than fourteen days.

(G) The imposition and enforcement of punishment under this section for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission and not properly punishable under this section . The fact that a punishment has been enforced may be shown by the accused upon trial and, when so shown, shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

(H) The adjutant general may, by regulation, prescribe the form of records to be kept of proceedings under this section and may also prescribe that certain categories of those proceedings shall be in writing.

(I) A commanding officer may delegate authority to make a reduction in pay grade under division (B)(2)(c) of this section to the commanding officer's executive officer, deputy commander, vice commander, or principal assistant.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 09-18-1997

5924.16 Courts-martial.

(A) In the organized militia , there are general, special, and summary courts-martial . General and special courts-martial are courts of record with original jurisdiction.

(B) A general court-martial consists of one of the following:

(1) A military judge and not fewer than five members;

(2) Only a military judge if, before the court is assembled, the accused, knowing the identity of the military judge and after consultation with defense counsel, requests in writing a court composed only of a military judge and the military judge approves .

(C) A special court-martial consists of one of the following:

(1) Three or more members;

(2) A military judge and not fewer than three members;

(3) Only a military judge if one has been detailed to the court and

before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests in writing a court composed only of a military judge and the military judge approves.

(D) A summary court-martial consists of one commissioned officer in the grade of captain or above.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.17 Jurisdiction of courts-martial.

The Ohio national guard has court-martial jurisdiction over all persons subject to this code. The exercise of jurisdiction by the Ohio national guard over personnel of another element of the organized militia shall be in accordance with regulations prescribed by the adjutant general.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.18 Jurisdiction of general courts-martial; punishments.

(A) Subject to section 5924.17 of the Revised Code, general courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code and may, under any limitations that the governor may prescribe, adjudge any of the following punishments:

(1) A fine of not more than two thousand five hundred dollars or confinement for not more than three hundred sixty-five days;

(2) Forfeiture of all pay and allowances;

(3) Reprimand;

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

(5) Reduction of a noncommissioned officer to the lowest or any intermediate rank;

(6) Any combination of the foregoing punishments.

(B) A general court-martial may not adjudge dismissal or dishonorable discharge unless a complete record of the proceedings and testimony is made, counsel having the qualifications prescribed under division (B) of section 5924.27 of the Revised Code is detailed to represent the accused, and a military judge is detailed to the trial.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.19 Jurisdiction of special courts-martial; punishments.

Subject to section 5924.17 of the Revised Code, special courts-martial have jurisdiction to try persons subject to this code for any offense for which they may be punished under this code. A special court-martial may adjudge any punishment a general court-martial may adjudge, except that a special court-martial may not impose a fine of more than one thousand dollars, confinement for more than one hundred eighty days for a single offense, or dismissal or dishonorable discharge. A special court-martial may not adjudge a bad-conduct discharge unless a complete record of the proceedings and testimony is made, counsel having the qualifications prescribed under division (B) of section 5924.27 of the Revised Code is detailed to represent the accused, and a military judge is detailed to the trial.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.20 Jurisdiction of summary courts-martial; punishments.

(A) Subject to section 5924.17 of the Revised Code, summary courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code.

(B) No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if the person objects to being brought to trial before a summary court-martial. If objection to trial by summary court-martial is made by an accused, trial may be ordered by special or general court-martial, as may be appropriate.

(C) Summary courts-martial may adjudge punishment of a fine not exceeding five hundred dollars, confinement for not more than thirty days, forfeiture of not more than two-thirds of one month's pay, and reduction to the lowest or any intermediate pay grade. For enlisted members in pay grade above E-4, summary courts-martial may not adjudge confinement or reduction except to the next inferior pay grade.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.21 Concurrent jurisdiction.

The provisions of this code that confer jurisdiction on courts-martial do not deprive military commissions, provost courts, other military tribunals, or state or federal courts of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, other military tribunals, or state or federal courts.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.22 Convening general courts-martial.

In the organized militia not in federal service, the governor, adjutant general, assistant adjutant general for army, or assistant adjutant general for air may convene general courts-martial .

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.23 Convening special courts-martial.

In the organized militia not in federal service, any commander authorized by regulation in the grade of colonel or a higher grade may convene special courts-martial.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.24 Convening summary courts-martial.

In the organized militia not in federal service, any commander authorized by regulation in the grade of lieutenant colonel or a higher grade may convene a summary court-martial

.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.25 Service on courts-martial.

(A) Any commissioned officer in a duty status is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.

(B) Any warrant officer in a duty status is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.

(C)

(1) Any enlisted member of the organized militia in a duty status who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of the organized militia who may lawfully be brought before such courts for trial if, before the conclusion of a session called by the military judge or, in the absence of a session called by the military judge, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible members cannot be obtained on account of physical conditions or military exigencies. If enough enlisted members cannot be obtained, the court may be assembled and trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.

(2) As used in division (C) of this section, "unit" means any regularly organized body of the organized militia not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.

(D)

(1) If it can be avoided, a person subject to this code shall not be tried by a court-martial, any member of which is junior to the person in rank or grade.

(2) When convening a court-martial, the convening authority shall detail as members of the court-martial members of the organized militia who, in the convening authority's opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the organized militia is eligible to serve as a member of a general or special court-martial if the member of the organized militia is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.26 Military judge.

(A) A military judge shall be detailed to each general and special court-martial . A military judge shall preside over each open session of the court-martial to which the judge has been detailed.

(B) A military judge shall be a commissioned officer of the organized militia who is a member in good standing of the bar of this state and who is certified to be qualified for duty as a military judge by the state judge advocate.

(C) The military judge of a general or special court-martial shall be designated by the state judge advocate for detail by the convening authority. Unless the court-martial was convened by the governor or the adjutant general, neither the convening authority nor the convening authority's staff, other than the state judge advocate or deputy state judge advocate, shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge's performance of duty as a military judge.

(D) No person is eligible to act as a military judge in a case if the person is the accuser, is a witness for the prosecution, has acted as investigating officer, or is a counsel in the same case.

(E) The military judge of a court-martial may not consult with the members of the court, except in the presence of the accused, trial counsel, and defense counsel, nor may the military judge vote with the members of the court.

(F) A trial counsel, defense counsel, military judge, legal officer, summary court officer, or any other person from any one component of the organized militia certified by the state judge advocate to perform legal functions under this code may perform those functions, as needed, for any other component of the organized militia.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.27 Trial and defense counsel.

(A) The state judge advocate shall detail trial counsel , defense counsel, and assistants that the state judge advocate considers appropriate. No person who has acted as investigating officer, military judge, or court member in any case may act later as trial counsel, assistant trial counsel, defense counsel, or assistant defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.

(B) Trial counsel or defense counsel detailed for a general court-martial must be both of the following:

(1) A member in good standing of the bar of this state;

(2) Certified as competent to perform the duties of trial counsel or defense counsel in a general court-martial by the state judge advocate.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.28 Court reporters and interpreters.

Under such regulations as the adjutant general may prescribe, the convening authority of a general or special court-martial shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court , and may detail or employ interpreters, who shall interpret for the court.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.29 Absent and additional members.

(A) No member of a general or special court-martial shall be absent or excused after the court has been assembled for the trial of the accused except for physical disability, as a result of a challenge, or by order of the convening authority for good cause.

(B) Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not fewer than five members. When the new members have been sworn, the trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and counsel for both sides.

(C) Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below three members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not fewer than three members. When the new members have been sworn, the trial shall proceed with the new members present as if no evidence had previously been introduced at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, if any, the accused, and counsel for both sides.

(D) If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge, or for other good cause, the trial shall proceed after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation thereof is read in court in the presence of the new military judge, the accused, and counsel for both sides.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.30 Charges and specifications.

(A) Charges and specifications shall be signed by a person subject to this code under oath before a commissioned officer of the organized militia authorized to administer oaths and shall state both of the following:

(1) That the signer has personal knowledge of, or has investigated, the matters set forth in the charges and specifications;

(2) That those matters are true in fact to the best of the person's knowledge and belief.

(B) Upon the preferring of charges, the proper authority shall take immediate steps to determine the disposition that should be made of the charges in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.31 Self-incrimination.

(A) No person subject to this code may compel any other person to incriminate the other person or to answer any question, the answer to which may tend to incriminate the other person.

(B) No person subject to this code may interrogate or request any statement from an accused or a person suspected of an offense, without first informing the accused or person suspected of the nature of the accusation and advising the accused or person suspected that the accused or person suspected does not have to make any statement regarding the offense of which the accused or person suspected is accused or suspected and that any statement made by the accused or person suspected may be used as evidence against the accused or person suspected in a trial by court-martial.

(C) No person subject to this code may compel any other person to make a statement or produce evidence before any court-martial if the statement or evidence is not material to the issue and may tend to degrade the other person.

(D) No statement obtained from any person in violation of this section, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against the person in a trial by court-martial.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.32 Investigation.

(A) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth in the charge or specification has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition that should be made of the case in the interest of justice and discipline.

(B) The accused shall be advised of the charges against the accused and of the accused's right to be represented at that investigation by counsel. Upon the accused's own request , the accused shall be represented by civilian counsel if provided by the accused at the accused's own cost, or by military counsel of the accused's own selection if such counsel is reasonably available, or by counsel detailed by the officer exercising general court-martial jurisdiction over the command. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against the accused if they are available and to present anything the accused may desire in the accused's own behalf, either in defense or mitigation, and the investigating officer shall examine reasonably available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides, and a copy of that statement shall be given to the accused.

(C) If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in division (B) of this section, no further investigation of that charge is necessary under this section unless it is demanded by the accused after the accused is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in the accused's own behalf.

(D) The requirements of this section are binding on all persons administering this code but failure to follow them does not divest a military court of jurisdiction.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.33 Forwarding charges.

When a person is held for trial by general court-martial, the commanding officer shall, not later than the eighth day after the accused is ordered into arrest or confinement, forward the charges, together with the investigation and allied papers, to the general court-martial convening authority. If that is not practicable, the commanding officer shall report in writing to the convening authority the reasons for delay.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.34 Pre-trial referral of general court-martial charge.

(A) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to the convening authority's staff judge advocate or legal officer for consideration and advice. The convening authority may not refer a charge to a general court-martial for trial unless the convening authority has found that the charge alleges an offense under this code and is warranted by evidence indicated in the report of the investigation.

(B) If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections and such changes in the charges and specifications as are needed to make them conform to the evidence may be made.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.35 Service of charges.

The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. Except in time of declared war, no person may, against the person's objection, be brought to trial or be required to participate alone or with counsel in a session called by the military judge in a general or special court-martial case within twenty-four hours after the service of charges upon the person.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.36 Trial procedure.

The procedure, including modes of proof, in cases before military courts may be prescribed by the adjutant general by regulations, that shall, so far as the adjutant general considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the courts of this state, but that may not be contrary to or inconsistent with this code.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.37 Unlawful influence.

(A) No authority convening a general, special, or summary court-martial, other commanding officer, or officer serving on the staff of a convening authority or other commanding officer may censure, reprimand, or admonish the court or any member, military judge, or counsel of the court, with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or the member's, military judge's, or counsel's functions in the conduct of the proceeding. No person subject to this code may attempt to coerce or, by any unauthorized means, influence the action of the court-martial or any other military tribunal or any member of the court-martial or military tribunal in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to the authority's judicial acts. This division does not apply to:

(1) General instructional or informational courses in military justice, if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial;

(2) Statements and instructions given in open court by the military judge, the president of a special court-martial, or counsel.

(B) In the preparation of a fitness, evaluation, or performance report, or any other report or document used in whole or in part for the purpose of determining whether a member of the organized militia is qualified to be advanced in grade, in determining the assignment or transfer of a member of the organized militia, or in determining whether a member of the organized militia should be retained on duty, no person subject to this code may do either of the following:

(1) Consider or evaluate the performance of duty of the member as a member of a court-martial;

(2) Give a less favorable rating or evaluation of any member of the organized militia because of the zeal with which the member, as counsel, represented any accused before a court-martial.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.38 Duties of trial and defense counsel.

(A) The trial counsel of a general or special court-martial shall prosecute in the name of the state and shall, under the direction of the court, prepare the record of the proceedings.

(B) The accused has the right to be represented in the accused's defense before a general or special court-martial by civilian counsel if provided by the accused at the accused's own cost, by military counsel of the accused's own selection if reasonably available, or by detailed military defense counsel . Should the accused have civilian counsel of the accused's own selection, the defense counsel and any assistant defense counsel who were detailed shall, if the accused so desires, act as the accused's associate counsel; otherwise they shall be excused by the military judge .

(C) In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of such matters as the defense counsel feels should be considered in behalf of the accused on review, including any objection to the contents of the record which the defense counsel considers appropriate.

(D) An assistant trial counsel of a court-martial may, under the direction of the trial counsel or when the assistant trial counsel is qualified to be a trial counsel , perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel .

(E) An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when the assistant defense counsel is qualified to be the defense counsel , perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.39 Convening without members of court present.

(A) At any time after the service of charges that have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to section 5924.35 of the Revised Code, call the court into session without the presence of the members for the following purposes:

(1) Hearing and determining motions raising defenses or objections that are capable of determination without trial of the issues raised by a plea of not guilty;

(2) Hearing and ruling upon any matter that may be ruled upon by the military judge under this code, whether or not the matter is appropriate for later consideration or decision by the members of the court;

(3) If permitted by regulations prescribed by the governor, holding the arraignment and receiving the pleas of the accused;

(4) Performing any other procedural function that may be performed by the military judge under this code or under regulations prescribed pursuant to section 5924.36 of the Revised Code and that does not require the presence of the members of the court.

These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel, and shall be made a part of the record.

(B) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in cases in which a military judge has been detailed to the court, the military judge.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.40 Continuances.

The military judge or a court-martial without a military judge may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

Effective Date: 07-17-1970

5924.41 Challenges.

(A) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or, if none, the court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

(B) Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause.

(C) If the exercise of a peremptory challenge reduces the number of members of a court-martial below the minimum required under section 5924.16 of the Revised Code, any remaining peremptory challenges shall be exercised or waived before additional members are detailed.

(D) Additional members detailed to a court-martial may be challenged for cause as provided in division (A) of this section. After challenges for cause against the additional members are presented and decided, each accused and trial counsel is entitled to one peremptory challenge against members not previously challenged peremptorily.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.42 Oaths.

(A) Before performing their respective duties, military judges, interpreters, members of general and special courts-martial, the trial counsel, the assistant trial counsel, the defense counsel, the assistant defense counsel, and reporters shall take an oath or affirmation to perform their duties faithfully. The oath or affirmation shall be taken in the presence of the accused and shall be substantially as follows:

(1) For a member of the court:

"You, .........., do swear (or affirm) that you will faithfully perform all the duties incumbent upon you as a member of this court; that you will faithfully and impartially try, according to the evidence, your conscience, and the laws and regulations provided for trials by courts-martial, the case of (the) (each) accused now before this court; and that if any doubt should arise not explained by the laws and regulations, then according to the best of your understanding and the customs of the service in like cases; that you will not divulge the findings or sentence in any case until they shall have been duly announced by the court; and that you will not disclose or discover the vote or opinion of any particular member of the court upon a challenge or upon the findings or sentence unless required to do so before a court of justice in due course of law. So help you God (or under penalty of perjury)."

(2) For a military judge:

"You, .........., do swear (or affirm) that you will faithfully and impartially perform, according to your conscience and the laws and regulations provided for trials by courts-martial, all the duties incumbent upon you as military judge of this court; that if any doubt should arise not explained by the laws and regulations, then according to the best of your understanding and the customs of the service in like cases; and that you will not divulge the findings or sentence in any case until they shall have been duly announced by the court. So help you God (or under penalty of perjury)."

(3) For trial counsel and assistant trial counsel:

"You, .........., do swear (or affirm) that you will faithfully perform the duties of trial counsel and will not divulge the findings or sentence of the court to any but the proper authority until they shall be duly disclosed. So help you God (or under penalty of perjury)."

(4) For defense counsel and assistant defense counsel:

"You, .........., do swear (or affirm) that you will faithfully perform the duties of defense counsel and will not divulge the findings or sentence of the court to any but the proper authority until they shall be duly disclosed. So help you God (or under penalty of perjury)."

(5) For a reporter or interpreter:

"You, ..........., do swear (or affirm) that you will faithfully perform the duties of reporter (or interpreter) to this court. So help you God (or under penalty of perjury)."

(B) Each witness before a court-martial shall be examined on oath or affirmation. The presiding officer shall administer an oath or affirmation in substantially the following form:

"You, .........., do swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God (or under penalty of perjury)."

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.43 Statute of limitations.

(A) A person charged with an offense punishable under this code is not liable to be tried by court-martial or punished under section 5924.15 of the Revised Code if the offense was committed more than four years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command .

(B) Periods in which the accused was absent from the state , is in the custody of civil authorities, or in the hands of the enemy shall be excluded in computing the period of limitation prescribed in this section.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 09-10-1963

5924.44 Double jeopardy.

(A) No person may be tried a second time in any court-martial of this state for the same offense.

(B) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial for purposes of this section until the finding of guilty has become final after review of the case has been fully completed.

(C) A proceeding that, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for want of available evidence or witnesses without any fault of the accused is a trial for purposes of this section.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.45 Entry of plea by accused; entry by court.

(A) An accused may plead not guilty , not guilty by reason of insanity, guilty, or, with the consent of the court, no contest. A plea of not guilty by reason of insanity shall be made in writing by either the accused or the accused's attorney. All other pleas may be made orally. The pleas of not guilty and not guilty by reason of insanity may be joined.

(B) If an accused refuses to plead, the court shall enter a plea of not guilty on behalf of the accused.

(C) Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, all of the following:

(1) The nature of the offense to which the plea is offered and the maximum possible penalty provided by law;

(2) In a general or special court-martial, if the accused is not represented by counsel, that the accused has the right to be represented by counsel at every stage of the proceedings;

(3) That the accused has the right to plead not guilty or to persist in that plea if already made, that the accused has the right to be tried by a court-martial, and that at trial the accused has the right to confront and cross-examine witnesses against the accused and the right against self-incrimination.

(4) That if the accused pleads guilty, there will not be a trial of any kind as to those offenses to which the accused has so pleaded and that by pleading guilty the accused waives the rights described in division (C)(3) of this section;

(5) That, if the accused pleads guilty, the military judge will question the accused about the offenses to which the accused has pleaded guilty, and that, if the accused answers the questions under oath, on the record, and in the presence of counsel, the accused's answers may later be used against the accused in a prosecution for perjury or false statement.

(D) The military judge shall not accept a plea of guilty without first addressing the accused personally and determining that the plea is voluntary and not the result of fear, threats, or promises. The military judge shall also inquire as to whether the accused's willingness to plead guilty results from prior discussions between the convening authority, a representative of the convening authority, or trial counsel and the accused or defense counsel.

(E) The military judge shall not accept a plea of guilty without making an inquiry of the accused that satisfies the military judge that there is a factual basis for the plea. The accused shall be questioned under oath about the offenses charged.

(F) When a negotiated plea of guilty or no contest to one or more offenses charged or to one or more other or lesser offenses is offered, the underlying agreement upon which the plea is based shall be stated on the record in open court.

(G) If the court refuses to accept a plea of guilty or no contest, the court shall enter a plea of not guilty on behalf of the accused, and neither plea shall be admissible in evidence or be the subject of comment by the trial counsel or court.

(H) The defense of not guilty by reason of insanity must be pleaded at the time of arraignment, except that the court for good cause shown shall permit a plea of not guilty by reason of insanity to be entered at any time before trial.

(I) A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed, but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the accused to withdraw the plea.

(J) An accused who is found guilty after pleading guilty waives any objection, whether or not previously raised, relating to the factual issue of guilt of the offense to which the plea was made.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.46 Opportunity to obtain evidence and witnesses.

(A) The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the adjutant general may prescribe.

(B) Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be substantially similar to process that may be issued by the courts of this state in criminal cases and shall run to any part of the state.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.47 Refusal to appear or testify.

Any person not subject to this code who has been duly subpoenaed to appear as a witness or to produce books and records before a military court or before any military or civil officer designated to take a deposition to be read in evidence before a military court or has been duly paid or tendered the fees and mileage of a witness at the rates provided for under section 119.094 of the Revised Code and who willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence that the person may have been legally subpoenaed to produce , may be punished for contempt in the manner provided for in Chapter 2705. of the Revised Code.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961; 2008 HB525 07-01-2009

5924.48 Penalty for contempt.

A military court, in the manner provided for in Chapter 2705. of the Revised Code, may punish for contempt any person who is guilty of any act described in section 2705.02 of the Revised Code.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.49 Depositions.

At any time after charges have been signed as provided in section 5924.30 of the Revised Code, any party may take oral or written depositions in the manner and for the purposes provided in the Ohio Rules of Criminal Procedure.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.50 Admissibility of records of board of officers.

(A) In any case , the sworn testimony contained in the duly authenticated record of proceedings of a board of officers of a person whose oral testimony cannot be obtained may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the board of officers and if the same issue was involved or if the accused consents to the introduction of such evidence.

(B) Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.

(C) Such testimony may also be read in evidence before a court of inquiry or a board of officers.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.501 Competency of accused; hearing.

(A) In an action under this code, the military judge, trial counsel, defense counsel, or civilian counsel may raise the issue of the accused's competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court's own motion.

(B) The court shall conduct the hearing required or authorized under division (A) of this section within thirty days after the issue is raised unless the accused has been referred for evaluation in which case the court shall conduct the hearing within ten days after the filing of the report of the evaluation. A hearing may be continued for good cause.

(C) The accused shall be represented by counsel at the hearing conducted under division (B) of this section.

(D) The trial counsel and defense counsel may submit evidence on the issue of the accused's competence to stand trial. A written report of the evaluation of the accused may be admitted into evidence at the hearing by stipulation, but, if either the government or defense objects to its admission, the report may be admitted under seal of court in camera to the military judge.

(E) The court shall not find an accused incompetent to stand trial solely because the accused is receiving or has received treatment as a voluntary or involuntary mentally ill patient under Chapter 5122. of the Revised Code or because the accused is receiving or has received psychotropic drugs or other medication, even if the accused might become incompetent to stand trial without the drugs or medication.

(F) An accused is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the accused's present mental condition, the accused is incapable of understanding the nature and objective of the proceedings against the accused or of assisting in the accused's defense, the court shall find the accused incompetent to stand trial and shall enter an order authorized by section 5924.503 of the Revised Code.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.502 Evaluation of accused's mental condition.

(A) If the issue of an accused's competence to stand trial is raised or if an accused enters a plea of not guilty by reason of insanity, the court may order one or more evaluations of the accused's present mental condition or, in the case of a plea of not guilty by reason of insanity, of the accused's mental condition at the time of the offense charged. An examiner shall conduct the evaluation.

(B) If the court orders more than one evaluation under division (A) of this section, the trial counsel and the defense counsel may recommend to the court an examiner whom each prefers to perform one of the evaluations. If an accused enters a plea of not guilty by reason of insanity and if the court does not designate an examiner recommended by the defense counsel, the court shall inform the accused that the accused may have independent expert evaluation and that it will be obtained for the accused at public expense.

(C) If the court orders an evaluation under division (A) of this section, the accused shall be available at the times and places established by the examiners who are to conduct the evaluation. The court may order an accused who is not being held in pretrial confinement to submit to an evaluation under this section. If an accused who is not being held in pretrial confinement refuses to submit to a complete evaluation, the court may order the sheriff to take the accused into custody and deliver the accused to a center, program, or facility operated or certified by the department of mental health and addiction services where the accused may be held for evaluation for a reasonable period of time not to exceed twenty days.

(D) An accused who is being held in pretrial confinement may be evaluated at the accused's place of detention. Upon the request of the examiner, the court may order the sheriff to transport the accused to a program or facility operated or certified by the department of mental health and addiction services, where the accused may be held for evaluation for a reasonable period of time not to exceed twenty days, and to return the accused to the place of detention after the evaluation.

(E) If a court orders the evaluation to determine an accused's mental condition at the time of the offense charged, the court shall inform the examiner of the offense with which the accused is charged.

(F) In conducting an evaluation of an accused's mental condition at the time of the offense charged, the examiner shall consider all relevant evidence. If the offense charged involves the use of force against another person, the relevant evidence to be considered includes, but is not limited to, any evidence that the accused suffered at the time of the commission of the offense from the "battered woman syndrome."

(G) The examiner shall file a written report with the court within thirty days after entry of a court order for evaluation, and the court shall provide copies of the report to the trial counsel and defense counsel. The report shall include all of the following:

(1) The examiner's findings;

(2) The facts in reasonable detail on which the findings are based;

(3) If the evaluation was ordered to determine the accused's competence to stand trial, all of the following findings or recommendations that are applicable:

(a) Whether the accused is capable of understanding the nature and objective of the proceedings against the accused or of assisting in the accused's defense;

(b) If the examiner's opinion is that the accused is incapable of understanding the nature and objective of the proceedings against the accused or of assisting in the accused's defense, whether the accused presently is mentally ill;

(c) If the examiner's opinion is that the accused is incapable of understanding the nature and objective of the proceedings against the accused or of assisting in the accused's defense, the examiner's opinion as to the likelihood of the accused becoming capable of understanding the nature and objective of the proceedings against the accused and of assisting in the accused's defense within one year if the accused is provided with a course of treatment;

(d) If the examiner's opinion is that the accused is incapable of understanding the nature and objective of the proceedings against the accused or of assisting in the accused's defense and that the accused presently is mentally ill, the examiner's recommendation as to the least restrictive placement or commitment alternative, consistent with the accused's treatment needs for restoration to competency and with the safety of the community;

(e) If the accused is charged before a special or summary court-martial with an offense that is not a violation of section 5924.120, 5924.127, or 5924.128 of the Revised Code and the examiner's opinion is that the accused is incapable of understanding the nature and objective of the proceedings against the accused or of assisting in the accused's defense and that the accused is presently mentally ill, the examiner's recommendation as to whether the accused is amenable to engagement in mental health treatment.

(4) If the evaluation was ordered to determine the accused's mental condition at the time of the offense charged, the examiner's findings as to whether the accused at the time of the offense charged did not know, as a result of a severe mental disease or defect, the wrongfulness of the accused's acts charged.

(H) An examiner appointed under divisions (A) and (B) of this section to evaluate an accused to determine the accused's competence to stand trial also may be appointed to evaluate an accused who has entered a plea of not guilty by reason of insanity, but an examiner of that nature shall prepare separate reports on the issue of competence to stand trial and the defense of not guilty by reason of insanity.

(I) No statement that an accused makes in an evaluation or hearing under divisions (A) to (H) of this section relating to the accused's competence to stand trial or to the accused's mental condition at the time of the offense charged may be used against the accused on the issue of guilt in any criminal action or proceeding, but, in a criminal action or proceeding, the trial counsel or defense counsel may call as a witness any person who evaluated the accused or prepared a report pursuant to a referral under this section. Neither the appointment nor the testimony of an examiner appointed under this section precludes the trial counsel or defense counsel from calling other witnesses or presenting other evidence on competency or insanity issues.

(J) Persons appointed as examiners under divisions (A) and (B) of this section or under division (H) of this section shall be paid a reasonable amount for their services and expenses, as certified by the court.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.503 Findings of competency or incompetency; evaluation and treatment of accused.

(A) If the issue of an accused's competence to stand trial is raised and if the court, upon conducting the hearing provided for in section 5924.502 of the Revised Code, finds that the accused is competent to stand trial, the accused shall be proceeded against as provided by law. If the court finds the accused competent to stand trial and the accused is receiving psychotropic drugs or other medication, the court may authorize the continued administration of the drugs or medication or other appropriate treatment in order to maintain the accused's competence to stand trial unless the accused's attending physician advises the court against continuation of the drugs, other medication, or treatment.

(B)

(1)

(a) If, after taking into consideration all relevant reports, information, and other evidence, the court finds that the accused is incompetent to stand trial and that there is a substantial probability that the accused will become competent to stand trial within one year if the accused is provided with a course of treatment, the court shall order the accused to undergo treatment. If the accused is being tried by a general court-martial and if, after taking into consideration all relevant reports, information, and other evidence, the court finds that the accused is incompetent to stand trial, but the court is unable at that time to determine whether there is a substantial probability that the accused will become competent to stand trial within one year if the accused is provided with a course of treatment, the court shall order continuing evaluation and treatment of the accused for a period not to exceed four months to determine whether there is a substantial probability that the accused will become competent to stand trial within one year if the accused is provided with a course of treatment.

(b) The court order for the accused to undergo treatment or continuing evaluation and treatment under division (B)(1)(a) of this section shall specify that the accused, if determined to require mental health treatment or continuing evaluation and treatment, shall be committed to the department of mental health and addiction services for treatment or continuing evaluation and treatment at a hospital, facility, or agency determined to be clinically appropriate by the department of mental health and addiction services. The order may restrict the accused's freedom of movement as the court considers necessary. The trial counsel in the accused's case shall send to the chief clinical officer of the hospital, facility, or services provider where the accused is placed by the department of mental health and addiction services or to the managing officer of the institution, the director of the facility, or the person to which the accused is committed copies of relevant investigative reports and other background information that pertains to the accused and is available to the trial counsel unless the trial counsel determines that the release of any of the information in the investigative reports or any of the other background information to unauthorized persons would interfere with the effective prosecution of any person or would create a substantial risk of harm to any person.

In committing the accused to the department of mental health and addiction services, the court shall consider the extent to which the person is a danger to the person and to others, the need for security, and the type of crime involved and, if the court finds that restrictions on the accused's freedom of movement are necessary, shall specify the least restrictive limitations on the person's freedom of movement determined to be necessary to protect public safety. In weighing these factors, the court shall give preference to protecting public safety.

(c) If the accused is found incompetent to stand trial, if the chief clinical officer of the hospital, facility, or services provider where the accused is placed, or the managing officer of the institution, the director of the facility, or the person to which the accused is committed for treatment or continuing evaluation and treatment under division (B)(1)(b) of this section determines that medication is necessary to restore the accused's competency to stand trial, and if the accused lacks the capacity to give informed consent or refuses medication, the chief clinical officer of the hospital, facility, or services provider where the accused is placed or the managing officer of the institution, the director of the facility, or the person to which the accused is committed for treatment or continuing evaluation and treatment may petition the court for authorization for the involuntary administration of medication. The court shall hold a hearing on the petition within five days of the filing of the petition. Following the hearing, the court may authorize the involuntary administration of medication or may dismiss the petition.

(d) If the accused is charged before a special or summary court-martial with an offense that is not a violation of section 5924.120, 5924.127, or 5924.128 of the Revised Code, the trial counsel may hold the charges in abeyance while the accused engages in mental health treatment.

(2) If the court finds that the accused is incompetent to stand trial and that, even if the accused is provided with a course of treatment, there is not a substantial probability that the accused will become competent to stand trial within one year, the court shall order the discharge of the accused, unless upon motion of the trial counsel or on its own motion, the court either seeks to retain jurisdiction over the accused pursuant to division (A)(2) of section 5924.504 of the Revised Code or files an affidavit in the probate court for the civil commitment of the accused pursuant to Chapter 5122. of the Revised Code alleging that the accused is a mentally ill person subject to hospitalization by court order. If an affidavit is filed in the probate court, the trial court shall send to the probate court copies of all written reports of the accused's mental condition that were prepared pursuant to section 5924.502 of the Revised Code.

The trial court may issue the temporary order of detention that a probate court may issue under section 5122.11 of the Revised Code, to remain in effect until the probable cause or initial hearing in the probate court. Further proceedings in the probate court are civil proceedings governed by Chapter 5122. of the Revised Code.

(C) No accused shall be required to undergo treatment, including any continuing evaluation and treatment, under division (B)(1) of this section for longer than whichever of the following periods is applicable:

(1) One year, if the accused is being tried by a general court-martial;

(2) Six months, if the accused is being tried before a special court-martial;

(3) Sixty days, if the accused is being tried before a summary court-martial.

(D) Any accused who is committed pursuant to this section shall not voluntarily admit the accused or be voluntarily admitted to a hospital or institution pursuant to section 5122.02 or 5122.15 of the Revised Code.

(E) Except as otherwise provided in this division, an accused who is charged with an offense and is committed by the court under this section to the department of mental health and addiction services with restrictions on the accused's freedom of movement shall not be granted unsupervised on-grounds movement, supervised off-grounds movement, or nonsecured status except in accordance with the court order. The court may grant an accused supervised off-grounds movement to obtain medical treatment or specialized habilitation treatment services if the person who supervises the treatment or the continuing evaluation and treatment of the accused ordered under division (B)(1)(a) of this section informs the court that the treatment or continuing evaluation and treatment cannot be provided at the hospital or facility where the accused is placed by the department of mental health and addiction services. The chief clinical officer of the hospital or facility where the accused is placed by the department of mental health and addiction services or the managing officer of the institution or director of the facility to which the accused is committed or a designee of any of those persons may grant an accused movement to a medical facility for an emergency medical situation with appropriate supervision to ensure the safety of the accused, staff, and community during that emergency medical situation. The chief clinical officer of the hospital or facility where the accused is placed by the department of mental health and addiction services or the managing officer of the institution or director of the facility to which the accused is committed shall notify the court within twenty-four hours of the accused's movement to the medical facility for an emergency medical situation under this division.

(F) The person who supervises the treatment or continuing evaluation and treatment of an accused ordered to undergo treatment or continuing evaluation and treatment under division (B)(1)(a) of this section shall file a written report with the court at the following times:

(1) Whenever the person believes the accused is capable of understanding the nature and objective of the proceedings against the accused and of assisting in the accused's defense;

(2) Fourteen days before expiration of the maximum time for treatment as specified in division (C) of this section and fourteen days before the expiration of the maximum time for continuing evaluation and treatment as specified in division (B)(1)(a) of this section;

(3) At a minimum, after each six months of treatment;

(4) Whenever the person who supervises the treatment or continuing evaluation and treatment of an accused ordered under division (B)(1)(a) of this section believes that there is not a substantial probability that the accused will become capable of understanding the nature and objective of the proceedings against the accused or of assisting in the accused's defense even if the accused is provided with a course of treatment.

(G) A report under division (F) of this section shall contain the examiner's findings, the facts in reasonable detail on which the findings are based, and the examiner's opinion as to the accused's capability of understanding the nature and objective of the proceedings against the accused and of assisting in the accused's defense. If, in the examiner's opinion, the accused remains incapable of understanding the nature and objective of the proceedings against the accused and of assisting in the accused's defense and there is a substantial probability that the accused will become capable of understanding the nature and objective of the proceedings against the accused and of assisting in the accused's defense if the accused is provided with a course of treatment, if in the examiner's opinion the accused remains mentally ill, and if the maximum time for treatment as specified in division (C) of this section has not expired, the report also shall contain the examiner's recommendation as to the least restrictive placement or commitment alternative that is consistent with the accused's treatment needs for restoration to competency and with the safety of the community. The court shall provide copies of the report to the trial counsel and defense counsel.

(H) If an accused is committed pursuant to division (B)(1) of this section, within ten days after the treating physician of the accused or the examiner of the accused who is employed or retained by the treating facility advises that there is not a substantial probability that the accused will become capable of understanding the nature and objective of the proceedings against the accused or of assisting in the accused's defense even if the accused is provided with a course of treatment, within ten days after the expiration of the maximum time for treatment as specified in division (C) of this section, within ten days after the expiration of the maximum time for continuing evaluation and treatment as specified in division (B)(1)(a) of this section, within thirty days after an accused's request for a hearing that is made after six months of treatment, or within thirty days after being advised by the treating physician or examiner that the accused is competent to stand trial, whichever is the earliest, the court shall conduct another hearing to determine if the accused is competent to stand trial and shall do whichever of the following is applicable:

(1) If the court finds that the accused is competent to stand trial, the accused shall be proceeded against as provided by law.

(2) If the court finds that the accused is incompetent to stand trial, but that there is a substantial probability that the accused will become competent to stand trial if the accused is provided with a course of treatment, and the maximum time for treatment as specified in division (C) of this section has not expired, the court, after consideration of the examiner's recommendation, shall order that treatment be continued, may change least restrictive limitations on the accused's freedom of movement.

(3) If the court finds that the accused is incompetent to stand trial, if the accused is being tried by a general court-martial, and if the court finds that there is not a substantial probability that the accused will become competent to stand trial even if the accused is provided with a course of treatment, or if the maximum time for treatment as specified in division (C) of this section has expired, further proceedings shall be as provided in sections 5924.504 to 5924.506 of the Revised Code.

(4) If the court finds that the accused is incompetent to stand trial, if the accused is being tried before a special court-martial, and if the court finds that there is not a substantial probability that the accused will become competent to stand trial even if the accused is provided with a course of treatment, or if the maximum time for treatment as specified in division (C) of this section has expired, the court shall dismiss the charge against the accused. A dismissal under this division is not a bar to further prosecution based on the same conduct. The court shall discharge the accused unless the court or trial counsel files an affidavit in probate court for civil commitment pursuant to Chapter 5122. of the Revised Code. If an affidavit for civil commitment is filed, the court may detain the accused for ten days pending civil commitment. All of the following provisions apply to persons being tried by a special court-martial who are committed by the probate court subsequent to the court's or trial counsel's filing of an affidavit for civil commitment under authority of this division:

(a) The chief clinical officer of the entity, hospital, or facility, the managing officer of the institution, or the person to which the accused is committed or admitted shall do all of the following:

(i) Notify the trial counsel in writing of the discharge of the accused, send the notice at least ten days prior to the discharge unless the discharge is by the probate court, and state in the notice the date on which the accused will be discharged;

(ii) Notify the trial counsel in writing when the accused is absent without leave or is granted unsupervised, off-grounds movement and send this notice promptly after the discovery of the absence without leave or prior to the granting of the unsupervised, off-grounds movement, whichever is applicable;

(iii) Notify the trial counsel in writing of the change of the accused's commitment or admission to voluntary status, send the notice promptly upon learning of the change to voluntary status, and state in the notice the date on which the accused was committed or admitted on a voluntary status.

(b) The trial counsel shall promptly inform the convening authority of any notification received under division (H)(4)(a) of this section. Upon receiving notice that the accused will be granted unsupervised, off-grounds movement, the convening authority either shall refer the charges against the accused to an investigating officer again or promptly notify the court that the convening authority does not intend to refer the charges against the accused again.

(I) If an accused is convicted of a crime and sentenced to confinement, the accused's sentence shall be reduced by the total number of days the accused is confined for evaluation to determine the accused's competence to stand trial or treatment under this section and sections 5924.502 and 5924.504 of the Revised Code or by the total number of days the accused is confined for evaluation to determine the accused's mental condition at the time of the offense charged.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.504 Finding accused incompetent to stand trial; civil commitment.

(A) If an accused being tried by a general court-martial is found incompetent to stand trial, after the expiration of the maximum time for treatment as specified in division (C) of section 5924.503 of the Revised Code or after the court finds that there is not a substantial probability that the accused will become competent to stand trial even if the accused is provided with a course of treatment, one of the following applies:

(1) The court or the trial counsel may file an affidavit in probate court for civil commitment of the accused in the manner provided in Chapter 5122. of the Revised Code. If the court or trial counsel files an affidavit for civil commitment, the court may detain the accused for ten days pending civil commitment. If the probate court commits the accused subsequent to the court's or trial counsel's filing of an affidavit for civil commitment, the chief clinical officer of the entity, hospital, or facility, the managing officer of the institution, or the person to which the accused is committed or admitted shall send to the trial counsel the notices described in divisions (H)(4)(a)(i) to (iii) of section 5924.503 of the Revised Code within the periods of time and under the circumstances specified in those divisions.

(2) On the motion of the trial counsel or on its own motion, the court may retain jurisdiction over the accused if at a hearing the court finds both of the following by clear and convincing evidence:

(a) The accused committed the offense with which the accused is charged.

(b) The accused is a mentally ill person subject to hospitalization by court order.

(B) In making its determination under division (A)(2) of this section as to whether to retain jurisdiction over the accused, the court may consider all relevant evidence, including, but not limited to, any relevant psychiatric, psychological, or medical testimony or reports, the acts constituting the offense charged, and any history of the accused that is relevant to the accused's ability to conform to the law.

(C) If the court conducts a hearing as described in division (A)(2) of this section and if the court does not make both findings described in divisions (A)(2)(a) and (b) of this section by clear and convincing evidence, the court shall dismiss the charges against the accused. Upon the dismissal, the court shall discharge the accused unless the court or trial counsel files an affidavit in probate court for civil commitment of the accused pursuant to Chapter 5122. of the Revised Code. If the court or trial counsel files an affidavit for civil commitment, the court may order that the accused be detained for up to ten days pending the civil commitment. If the probate court commits the accused subsequent to the court's or trial counsel's filing of an affidavit for civil commitment, the chief clinical officer of the entity, hospital, or facility, the managing officer of the institution, or the person to which the accused is committed or admitted shall send to the trial counsel the notices described in divisions (H)(4)(a)(i) to (iii) of section 5924.503 of the Revised Code within the periods of time and under the circumstances specified in those divisions. A dismissal of charges under this division is not a bar to further criminal proceedings based on the same conduct.

(D)

(1) If the court conducts a hearing as described in division (A)(2) of this section and if the court makes the findings described in divisions (A)(2)(a) and (b) of this section by clear and convincing evidence, the court shall commit the accused, if determined to require mental health treatment, to the department of mental health and addiction services for treatment at a hospital, facility, or services provider as determined clinically appropriate by the department of mental health and addiction services. In committing the accused to the department of mental health and addiction services, the court shall specify the least restrictive limitations on the accused's freedom of movement determined to be necessary to protect public safety.

(2) If a court makes a commitment of an accused under division (D)(1) of this section, the trial counsel shall send to the hospital, facility, or services provider where the accused is placed by the department of mental health and addiction services or to the accused's place of commitment all reports of the accused's current mental condition and, except as otherwise provided in this division, any other relevant information, including, but not limited to, a transcript of the hearing held pursuant to division (A)(2) of this section, copies of relevant investigative reports, and copies of any prior arrest and conviction records that pertain to the accused and that the trial counsel possesses. The trial counsel shall send the reports of the accused's current mental condition in every case of commitment, and, unless the trial counsel determines that the release of any of the other relevant information to unauthorized persons would interfere with the effective prosecution of any person or would create a substantial risk of harm to any person, the trial counsel also shall send the other relevant information.

(3) If a court makes a commitment under division (D)(1) of this section, all further proceedings shall be in accordance with Chapter 5122. of the Revised Code.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.505 "Not guilty by reason of insanity".

For purposes of sections 5924.502 and 5924.506 of the Revised Code, a person is "not guilty by reason of insanity" relative to a charge of an offense only as described in division (A)(14) of section 2901.01 of the Revised Code. Proof that a person's reason, at the time of the commission of an offense, was so impaired that the person did not have the ability to refrain from doing the person's act or acts, does not constitute a defense.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.506 Finding of not guilty by reason of insanity; hearing.

(A) If an accused person is found not guilty by reason of insanity, the verdict shall state that finding, and the trial court shall conduct a full hearing to determine whether the person is a mentally ill person subject to hospitalization by court order. Prior to the hearing, if the military judge believes that there is probable cause that the person found not guilty by reason of insanity is a mentally ill person subject to hospitalization by court order, the military judge may issue a temporary order of detention for that person to remain in effect for ten court days or until the hearing, whichever occurs first.

Any person detained pursuant to a temporary order of detention issued under this division shall be held in a suitable facility, taking into consideration the place and type of confinement prior to and during trial.

(B) The court shall hold the hearing under division (A) of this section to determine whether the person found not guilty by reason of insanity is a mentally ill person subject to hospitalization by court order within ten court days after the finding of not guilty by reason of insanity. Failure to conduct the hearing within the ten-day period shall cause the immediate discharge of the respondent, unless the judge grants a continuance for not longer than ten court days for good cause shown or for any period of time upon motion of the respondent.

(C) If a person is found not guilty by reason of insanity, the person has the right to attend a hearing conducted pursuant to this section. At the hearing, the court shall inform the person that the person has all of the following rights:

(1) The right to be represented by defense counsel or to retain civilian counsel, if the person so chooses;

(2) The right to have independent expert evaluation;

(3) The right to subpoena witnesses and documents, to present evidence on the person's behalf, and to cross-examine witnesses against the person;

(4) The right to testify in the person's own behalf and to not be compelled to testify;

(5) The right to have copies of any relevant medical or mental health document in the custody of the state or of any place of commitment other than a document for which the court finds that the release to the person of information contained in the document would create a substantial risk of harm to any person.

(D) The hearing under division (A) of this section shall be open to the public, and the court shall conduct the hearing in accordance with regulations prescribed by the adjutant general. The court shall make and maintain a full transcript and record of the hearing proceedings. The court may consider all relevant evidence, including, but not limited to, any relevant psychiatric, psychological, or medical testimony or reports, the acts constituting the offense in relation to which the person was found not guilty by reason of insanity, and any history of the person that is relevant to the person's ability to conform to the law.

(E) Upon completion of the hearing under division (A) of this section, if the court finds there is not clear and convincing evidence that the person is a mentally ill person subject to hospitalization by court order, the court shall discharge the person, unless a detainer has been placed upon the person by the department of rehabilitation and correction, in which case the person shall be returned to that department.

(F) If, at the hearing under division (A) of this section, the court finds by clear and convincing evidence that the person is a mentally ill person subject to hospitalization by court order, it shall commit the person to the department of mental health and addiction services for placement in a hospital, facility, or services provider as determined clinically appropriate by the department of mental health and addiction services. Further proceedings shall be in accordance with Chapter 5122. or 5123. of the Revised Code. In committing the accused to the department of mental health and addiction services, the court shall specify the least restrictive limitations on the accused's freedom of movement determined to be necessary to protect public safety.

(G) If a court makes a commitment of a person under division (F) of this section, the trial counsel shall send to the hospital, facility, or services provider where the defendant is placed by the department of mental health and addiction services or to the accused's place of commitment all reports of the person's current mental condition, and, except as otherwise provided in this division, any other relevant information, including, but not limited to, a transcript of the hearing held pursuant to division (A) of this section, copies of relevant investigative reports, and copies of any prior arrest and conviction records that pertain to the person and that the trial counsel possesses. The trial counsel shall send the reports of the person's current mental condition in every case of commitment, and, unless the trial counsel determines that the release of any of the other relevant information to unauthorized persons would interfere with the effective prosecution of any person or would create a substantial risk of harm to any person, the trial counsel also shall send the other relevant information.

(H) A person who is committed pursuant to this section shall not voluntarily admit the person or be voluntarily admitted to a hospital or institution pursuant to sections 5122.02 and 5122.15 of the Revised Code.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.51 Voting and rulings.

(A) Voting by members of a general or special court-martial on the findings and on the sentence, and by members of a court-martial without a military judge upon questions of challenge, shall be by secret written ballot. The junior member of the court shall in each case count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.

(B) The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a special court-martial, without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial without a military judge may change the ruling at any time during the trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 5924.52 of the Revised Code, beginning with the junior in rank.

(C) Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them:

(1) That the accused must be presumed to be innocent until guilt is established by legal and competent evidence beyond reasonable doubt;

(2) That in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused, and the accused must be acquitted;

(3) That, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and

(4) That the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the state.

(D) Divisions (A), (B), and (C) of this section do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request make specific findings of fact. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.52 Number of votes required.

(A) No person may be convicted of any offense, except by the concurrence of two-thirds of the members of the court-martial present at the time the vote is taken.

(B)

All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, to decrease or lessen it, may be made by any lesser vote that indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.53 Announcement of findings.

A court-martial shall announce its findings and sentence to the parties as soon as determined.

Effective Date: 10-10-1961

5924.54 Record of proceedings.

(A) Each general court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of death, disability, or absence. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions that would impose such a duty on a member under this division .

(B) Each special and summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner required by regulations prescribed by the adjutant general.

(C)

(1) A complete record of the proceedings and testimony shall be prepared in the following cases:

(a) Each case tried before a general court-martial in which the sentence adjudged includes a dismissal, a discharge, or any punishment that exceeds the punishment that may otherwise be adjudged by a special court-martial;

(b) Each case tried before a special court-martial in which the sentence adjudged includes a bad-conduct discharge or confinement for more than six months.

(2) In all other cases tried before a court-martial, the record shall contain any matters that are required by regulations of the adjutant general. A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.55 Cruel and unusual punishments.

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this code. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

Effective Date: 10-10-1961

5924.56 Maximum punishments.

The punishment that a court-martial may direct for an offense may not exceed limits prescribed by the adjutant general for the offense.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.57 Effective date of sentences.

(A)

(1) A forfeiture of pay or allowances or reduction in grade that is included in a sentence of a court-martial takes effect on the earlier of the date that is fourteen days after the date on which the sentence is adjudged or the date on which the sentence is approved by the convening authority.

(2) On application of an accused, the convening authority may defer a forfeiture of pay or allowances or reduction in grade that would otherwise become effective on the date that is fourteen days after the date on which the sentence is adjudged until the date on which the sentence is approved by the convening authority. The convening authority may at any time rescind a deferment granted under this division.

(3) A forfeiture of pay or allowances applies to pay or allowances accruing on and after the date on which the sentence takes effect.

(B) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.

(C) All other sentences of courts-martial are effective on the date ordered executed.

(D)

(1) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under the convening authority's jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned may in the officer's sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under the officer's jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.

(2) In any case in which a court-martial sentences a person described in division (D)(3) of this section to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of that person, until after the person has been permanently released to the armed forces by a state or foreign country referred to in that division.

(3) Division (D)(2) of this section applies to a person subject to this chapter who, while in the custody of a state or foreign country, is temporarily returned by that state or foreign country to the armed forces for trial by court-martial and after the court-martial is returned to that state or foreign country under the authority of a mutual agreement or treaty.

(4) As used in division (D)(3) of this section, "state" includes the District of Columbia and any state, commonwealth, territory, or possession of the United States having a national guard.

(E) In any case in which a sentence to confinement has been ordered executed but in which review of the case under section 5924.64 of the Revised Code is pending, the adjutant general may defer further service of the sentence while the review is pending.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.58 Execution of sentence of confinement.

(A) Subject to regulations prescribed by the adjutant general, a sentence of confinement adjudged by a court-martial or other military tribunal, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any jail or correctional facility in this state. Persons so confined are subject to the same discipline and treatment as persons confined or committed to the jail or correctional facility by the courts of the state or of any political subdivision of the state.

(B) No payment of any kind may be required for so housing a prisoner under this code.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-06-1994

5924.581 Reduction in pay for enlisted members.

(A) Except as otherwise provided in regulations made by the adjutant general, a court-martial sentence of an enlisted member in a pay grade above E-1 that includes a dishonorable or bad-conduct discharge, confinement, or hard labor without confinement reduces the member to pay grade E-1, effective on the date the convening authority approves the sentence.

(B) If the sentence of a member who is reduced in pay grade under division (A) of this section is set aside or disapproved, or as finally approved does not include a dishonorable or bad-conduct discharge, confinement, or hard labor without confinement, the rights and privileges of which the member was deprived because of the reduction in pay are restored, and the member shall be paid the pay and allowances that the member would have been paid for the period the reduction was in effect had the member not been reduced in pay.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.582 Forfeiture of pay and allowances.

(A) A member who receives a court-martial sentence that includes confinement for more than six months or confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal forfeits pay, or pay and allowances, during any period of confinement or parole. The forfeiture takes effect on the date determined under section 5924.57 of the Revised Code and may be deferred as provided by that section. The pay and allowances forfeited as a result of a sentence imposed by a general court-martial shall be all pay and allowances due during any period of confinement or parole. The pay and allowances forfeited as a result of a sentence imposed by a special court-martial shall be two-thirds of all pay and allowances due during any period of confinement or parole.

(B) If a member subject to forfeiture of pay or pay and allowances under division (A) of this section has dependents, the convening authority or other person acting under section 5924.60 of the Revised Code may waive all or part of the forfeiture of pay and allowances for a period not exceeding six months. Any pay or allowances paid as a result of a waiver shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused member.

(C) If the sentence of a member who forfeits pay and allowances under division (A) of this section is set aside or disapproved or, as finally approved, does not provide for a punishment that includes confinement for more than six months or confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal, the member shall be paid the pay and allowances that the member would have been paid for the period the forfeiture was in effect had the member's pay and allowances not been forfeited.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.59 Review of finding.

(A) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

(B) Any reviewing authority with the power to approve or affirm a finding of guilty may instead approve or affirm so much of the finding as includes a lesser included offense.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.60 Report of findings to convening authority; submission of matters by accused; actions by convening authority; revision or rehearing.

(A) A court-martial shall report its findings and sentence to the convening authority after announcing the sentence.

(B)

(1) The accused may submit to the convening authority matters relating to the findings and sentence to the convening authority for its consideration. A submission shall be in writing. A submission shall be made within ten days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate or legal officer under division (D) of this section or, in a summary court-martial case, within seven days after the sentence is announced.

(2) The convening authority or other person taking action under this section, for good cause shown by the accused, may extend the period for submission of matters under division (B)(1) of this section for not more than twenty days.

(3) In a summary court-martial case, the summary court officer shall promptly provide the accused with a copy of the record of trial for use in preparing a submission authorized by division (B)(1) of this section.

(4) The accused may waive the right to make a submission under division (B)(1) of this section. A waiver shall be made in writing and may not be revoked. The time within which the accused may make a submission under this subsection expires upon the submission of a waiver to the convening authority.

(C)

(1) The authority under this section to act on the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. Pursuant to regulations prescribed by the adjutant general, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.

(2) The convening authority or another person authorized to act under this section may act on the sentence of a court-martial pursuant to division (B)(3) of this section. Subject to regulations prescribed by the adjutant general, the convening authority or other authorized person may act only after the accused submits matters under division (B) of this section or the time for submitting matters expires, whichever is earlier. If the accused makes a submission, the convening authority or other authorized person shall take the submission into consideration before acting.

(3) The convening authority or other authorized person, in the convening authority's or other authorized person's sole discretion, may approve, disapprove, commute, or suspend the sentence of a court-martial in whole or in part. The convening authority or other authorized person acting on a sentence may but is not required to take action on the findings of the court-martial. A convening authority or other authorized person that chooses to act on the findings may dismiss any charge or specification by setting aside a finding of guilt with regard to that charge or specification or may change a finding of guilty with regard to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.

(D) Before acting under this section on any general court-martial case or on any special court-martial case that includes a bad-conduct discharge, the convening authority or other authorized person shall obtain and consider the written recommendation of the convening authority's or other authorized person's staff judge advocate or legal officer. The convening authority or other authorized person shall refer the record of trial to the staff judge advocate or legal officer. The staff judge advocate or legal officer shall use the record in the preparation of a recommendation. The recommendation shall include any matters that the adjutant general may require by regulation and shall be served on the accused. The accused may submit any matter in response under division (B) of this section. If in the accused's response, the accused does not object to one or more matters contained in the recommendation, the accused waives the right to object to those matters.

(E)

(1) The convening authority or other authorized person, in the convening authority's or other authorized person's sole discretion, may order a proceeding in revision or a rehearing.

(2) The convening authority or other authorized person may order a proceeding in revision if there is an apparent error or omission in the record of a court-martial or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In a proceeding in revision, the convening authority or other authorized person may not do any of the following:

(a) Reconsider a finding of not guilty of any specification or a ruling that amounts to a finding of not guilty;

(b) Reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge that sufficiently alleges a violation of any provision of this chapter;

(c) Increase the severity of the sentence.

(3) The convening authority or other authorized person may order a rehearing if the convening authority or other authorized person disapproves the findings or sentence and states the reasons for disapproval of the findings or sentence. If the convening authority or other authorized person disapproves the findings or sentence and does not order a rehearing, the convening authority or other authorized person shall dismiss the charges. A convening authority or other authorized person may not order a rehearing as to the findings if the record does not contain sufficient evidence to support the findings. A convening authority or other authorized person may order a rehearing as to the sentence if the convening authority or other authorized person disapproves the sentence.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.61 Appeal by accused.

(A) An accused may appeal a finding of guilty or the sentence of a court-martial to the court of military appeals. The court shall hear an appeal if the convening authority or other authorized person approved a sentence of dismissal of a commissioned officer, dishonorable or bad conduct discharge, or confinement for one year or more and if the appeal was timely filed. The court may hear any other appeals that the court, in its sole discretion, allows.

(B) An accused who is found guilty may appeal under this section by filing a notice of appeal with the convening authority that ordered the court-martial within thirty calendar days after the convening authority serves a copy of the approved findings and sentence on the trial attorney of record for the accused or, if the accused waived the right to counsel, on the accused in accordance with regulations prescribed by the adjutant general. The notice of appeal shall state the name of the party taking the appeal, the findings, sentence, or parts of the findings or sentence appealed from, and the grounds for the appeal. Failure to file a notice of appeal in a timely manner constitutes a waiver of the right to appeal.

(C) Upon receiving a notice of appeal, the convening authority shall serve a copy of the notice on the trial counsel and on the trial attorney of record for any codefendant or, if a codefendant waived the right to counsel, on the codefendant in accordance with regulations prescribed by the adjutant general. The convening authority shall note on each copy served the date on which the notice of appeal was filed. Failure of the convening authority to serve a copy of the notice of appeal does not affect the validity of the appeal. Service in accordance with division (C) of this section is sufficient notwithstanding the death of a party or a party's counsel. The convening authority shall note on its docket the names of the parties served, the dates on which they were served, and the method of service.

(D) An accused may waive appellate review by filing with the convening authority, within ten days after the action under section 5924.60 of the Revised Code is served on the accused or on defense counsel, a written waiver signed by the accused and by defense counsel. The convening authority or other person taking such action, for good cause, may extend the period for filing by not more than thirty days.

(E) An accused may voluntarily withdraw an appeal at any time by filing a notice of withdrawal with the convening authority.

(F) A waiver of the right to appellate review or the withdrawal of an appeal bars any further review under this section or section 5924.69 of the Revised Code.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.62 Appeal by state.

(A) In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the state may appeal any of the following, except an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification:

(1) An order or ruling that terminates the proceedings with respect to a charge or specification;

(2) An order or ruling that excludes evidence that is of substantial consequence to the determination of the material issues in the proceeding;

(3) An order or ruling that directs the disclosure of classified information;

(4) An order or ruling that imposes sanctions for nondisclosure of classified information;

(5) A refusal by the military judge to issue a protective order sought by the state to prevent the disclosure of classified information;

(6) A refusal by the military judge to enforce a protective order that has previously been issued by appropriate authority to prevent the disclosure of classified information.

(B) The state may not appeal an order or ruling unless within seventy-two hours after the military judge serves the order or ruling the trial counsel files with the military judge a written notice of appeal from the order or ruling. The notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one that excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.

(C) Appellate government counsel shall diligently prosecute an appeal under this section to the court of military appeals created by section 5924.66 of the Revised Code.

(D) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.63 Rehearings.

Each rehearing ordered pursuant to section 5924.60 of the Revised Code or by the court of military appeals shall take place before a court-martial composed of members who were not members of the court-martial that first heard the case. Upon a rehearing the accused may not be tried for any offense of which the accused was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes the accused's plea with respect to the charges or specifications upon which the pretrial agreement was based or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of the punishment lawfully adjudged at the first court-martial.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.64 Review of cases in which no appeal taken.

(A) A judge advocate shall review pursuant to regulations prescribed by the adjutant general each case in which there has been a finding of guilty and in which no appeal is taken. A judge advocate may not review a case under this section if the judge advocate has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. For each case reviewed under this section, the judge advocate shall issue written findings and recommendations that contain all of the following:

(1) Conclusions as to whether the court had jurisdiction over the accused and the offense;

(2) Conclusions as to whether the charge and specification stated an offense;

(3) Conclusions as to whether the sentence was within the limits prescribed by law;

(4) A response to each allegation of error made in writing by the accused;

(5) If the case is sent for action under division (B) of this section, a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.

(B) The record of trial and related documents in each case reviewed under division (A) of this section shall be sent for further action under division (C) of this section to the person exercising general court-martial jurisdiction over the accused at the time the court was convened or that person's successor in command if any of the following applies:

(1) The judge advocate who reviewed the case recommends corrective action.

(2) The sentence approved under division (C) of section 5924.60 of the Revised Code includes dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six months.

(3) Regulations prescribed by the adjutant general require further review.

(C) The person to whom the record of trial and related documents are sent under division (B) of this section may do any of the following:

(1) Approve or disapprove the findings or sentence in whole or in part;

(2) Remit, commute, or suspend the sentence in whole or in part;

(3) Order a rehearing on the findings, the sentence, or both;

(4) Dismiss the charges.

(D) If a rehearing is ordered but the convening authority finds that a rehearing is impracticable, the convening authority shall dismiss the charges.

(E) If the opinion of the judge advocate who reviews a case under division (A) of this section finds that corrective action is required as a matter of law and the person required to take action under division (B) of this section does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the convening authority shall transmit the record of trial and action on that record to the state judge advocate for review.

(F) The judge advocate who under this section reviews a case conducted by a general court-martial shall be the state judge advocate.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.65 Transmission of record.

If an accused files a notice of appeal, the convening authority shall transmit the record of trial and post-trial proceedings in the case to the state judge advocate for appropriate action. If the accused does not file a notice of appeal or files a notice of appeal and withdraws the appeal, then following completion of all post-trial review, the record of trial and related documents shall be transmitted and disposed of as the adjutant general may prescribe by regulation.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.66 Court of military appeals.

(A) There is hereby created the court of military appeals. The court is a court of record and has exclusive jurisdiction of all appeals from courts-martial convened pursuant to this code. The court shall sit in Franklin county. All hearings conducted by the court shall be public.

(B) The judges of the court of military appeals shall be military appellate judges appointed by the adjutant general. Each judge shall be a retired judge advocate officer who has previously served in the rank of colonel or above in either the Ohio army national guard or the Ohio air national guard. The judges shall sit in panels of not less than three members.

(C) The adjutant general may make rules governing practice and procedure in the court of military appeals. The Rules of Appellate Procedure apply in proceedings in the court to the extent that they are not inconsistent with this code or with rules made by the adjutant general under this division.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.67 Compensation for judges.

A judge of the court of military appeals shall receive as compensation for each day of attendance on the business of the court an amount equal to the annual compensation of a judge of a court of appeals divided by the number of days in the calendar year. A judge who resides more than fifty miles from the location of the court also shall be reimbursed for the judge's actual and necessary expenses of traveling to and from the court to attend the business of the court.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.68 Power of subpoena.

The court of military appeals may subpoena witnesses, require the production of evidence, and punish for contempt in the same manner and to the same extent as a common pleas court.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.69 Appeals to the supreme court.

Appeals from orders and judgments of the court of military appeals may be taken to the supreme court in the same manner and to the same extent as criminal appeals from orders and judgments of a court of appeals.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.70 Appellate counsel.

(A) The state judge advocate shall detail one or more judge advocates as appellate government counsel and one or more judge advocates assigned to the United States army trial defense service or the United States air force area defense counsel as appellate defense counsel. Appellate counsel shall be members in good standing of the bar of this state and certified by the state judge advocate to be competent to act as appellate counsel.

(B) Appellate government counsel shall represent the state in the court of military appeals. In a case arising under this code that is heard in the supreme court, appellate government counsel shall represent the state in the supreme court unless the attorney general elects to represent the state.

(C) Appellate defense counsel shall represent the accused in the court of military appeals and the supreme court unless the accused elects to be represented by civilian counsel at the accused's own expense.

(D) Appellate government and defense counsel shall perform any additional functions in connection with post-trial proceedings in court-martial cases that the state judge advocate directs.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.71 Sentence of dismissal or discharge.

(A) If the sentence of a court-martial of a commissioned officer or cadet includes dismissal, that part of the sentence providing for dismissal may not be executed until it is approved by the adjutant general. The adjutant general may commute, remit, or suspend the sentence or any part of the sentence as the adjutant general sees fit. In time of war or national emergency, the adjutant general may commute a sentence of dismissal to reduction to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emergency and for six months after the end of the war or emergency.

(B)

(1) If the sentence of a court-martial includes dismissal or dishonorable or bad-conduct discharge and the accused appeals to the court of military appeals, the dismissal or discharge part of the sentence may not be executed until the appellate process has been completed and, in case of dismissal, approval of the sentence by the adjutant general. The appellate process is completed when any of the following occurs:

(a) The accused withdraws the appeal.

(b) The court of military appeals renders a decision, and the time for filing a notice of appeal to the supreme court elapses without the accused having filed a notice of appeal.

(c) The supreme court issues an order dismissing the appeal or entering judgment on the leave to appeal.

(2) If the sentence of a court-martial includes dismissal or dishonorable or bad-conduct discharge and the accused fails to appeal to the court of military appeals, waives appellate review, or withdraws an appeal, the dismissal or discharge part of the sentence may not be executed until a judge advocate has reviewed the case and the convening authority has completed action in the review pursuant to section 5924.64 of the Revised Code. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under section 5924.60 of the Revised Code.

(C) The convening authority or other person taking action on a court-martial case under section 5924.60 of the Revised Code may suspend at any time the execution of any sentence or part of a sentence.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.72 Vacation of suspension of sentence.

(A) An officer having special court-martial jurisdiction over a person whose sentence has been suspended may recommend vacation of the suspension of an approved sentence or part of a sentence that was imposed by a special court-martial and includes a bad-conduct discharge or that was imposed by a general court-martial.

(B) Before vacating the suspension of a sentence or part of a sentence under division (A) of this section, an officer having special court-martial jurisdiction over a person whose sentence has been suspended shall hold a hearing on the alleged violation of the terms of suspension. The person has the right to be represented at the hearing by counsel .

(C) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the person whose sentence has been suspended. If that officer vacates the suspension, any unexecuted part of the sentence except a dismissal shall be executed, subject to applicable restrictions set forth in section 5924.71 of the Revised Code. A vacation of the suspension of a dismissal is not effective until it is approved by the adjutant general.

(D) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.73 Petition for new trial.

At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the adjutant general for a new trial on the ground of newly discovered evidence or fraud on the court. The adjutant general shall act upon the petition unless the case is pending before the court of military appeals or the supreme court, in which case the adjutant general shall refer the petition to the court in which the appeal is pending.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 07-17-1970

5924.74 Remission and suspension by adjutant general, state judge advocate, or convening authority.

(A) The adjutant general, the state judge advocate when authorized by the adjutant general, or a convening authority may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures, other than a sentence approved by the governor or a superior convening authority.

(B) The adjutant general may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.75 Effect of disapproval of sentence; reappointment of officers; leave pending actions.

(A) Under any regulations that the adjutant general may prescribe, all rights, privileges, and property affected by an executed part of a court-martial sentence that has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and the executed part of the sentence is included in a sentence imposed upon the new trial or rehearing.

(B) If a previously executed sentence of dishonorable or bad conduct discharge is not imposed on a new trial, the adjutant general shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused's enlistment.

(C) If a previously executed sentence of dismissal is not imposed on a new trial, the adjutant general shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the adjutant general alone to such commissioned grade and with such rank as in the opinion of the adjutant general that former officer would have attained had the former officer not been dismissed. The reappointment of such a former officer shall be made without regard to the existence of a vacancy and shall affect the promotion status of other officers only to the extent directed by the adjutant general. All time between the dismissal and the reappointment shall be considered as service for all purposes including the right to pay and allowances.

(D) Pursuant to regulations prescribed by the adjutant general, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this code if the sentence, as approved under section 5924.60 of the Revised Code, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin leave on the date on which the sentence is approved or at any time after that date. Leave may be continued until the date on which action is completed or may be terminated at any earlier time.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.76 Finality of proceedings.

The appellate review of records of trial pursuant to this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed pursuant to this code, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation pursuant to this code are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the state, subject only to action upon a petition for a new trial as provided in section 5924.73 of the Revised Code and to action by the adjutant general under section 5924.74 of the Revised Code.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.761 Leave pending completion of certain actions.

Pursuant to regulations prescribed by the adjutant general, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under sections 5924.59 to 5924.761 of the Revised Code if the sentence, as approved under section 5924.60 of the Revised Code, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin the leave on the date on which the sentence is approved under section 5924.60 of the Revised Code or at any time after that date, and the leave may be continued until the date on which action under sections 5924.59 to 5924.761 of the Revised Code is terminated or completed.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.77 Principal defined.

Any person subject to this code is a principal if the person does either of the following:

(A) Commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission;

(B) Causes an act to be done which if directly performed by the person would be punishable by this code.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.78 Accessory after the fact.

Any person subject to this code who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender's apprehension, trial, or punishment shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.79 Conviction of lesser included offense.

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.

Effective Date: 10-10-1961

5924.80 Attempts.

(A) An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.

(B) Any person subject to this code who attempts to commit any offense punishable by this code shall be punished as a court-martial may direct, unless otherwise specifically prescribed.

(C) Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was not consummated.

Effective Date: 10-10-1961

5924.81 Conspiracy.

Any person subject to this code who conspires with any other person to commit an offense under this code shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

Effective Date: 10-10-1961

5924.82 Solicitation.

(A) Any person subject to this code who solicits or advises another or others to desert in violation of section 5924.85 of the Revised Code and of this code or mutiny in violation of section 5924.94 of the Revised Code and of this code shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, the person shall be punished as a court-martial may direct.

(B) Any person subject to this code who solicits or advises another or others to commit an act of sedition in violation of section 5924.94 of the Revised Code and of this code shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, the person shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.83 Fraudulent enlistment, appointment or separation.

Any person who does either of the following shall be punished as a court-martial may direct:

(A) Procures the person's own enlistment or appointment in the organized militia by knowingly false representation or deliberate concealment as to the person's qualifications for that enlistment or appointment and receives pay or allowances thereunder;

(B) Procures the person's own separation from the organized militia by knowingly false representation or deliberate concealment as to the person's eligibility for that separation .

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.84 Unlawful enlistment, appointment or separation.

Any person subject to this code who effects an enlistment or appointment in or a separation from the organized militia of any person who is known to the person to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.85 Desertion.

(A) Any member of the organized militia who does any of the following is guilty of desertion:

(1) Without authority goes or remains absent from the member's unit, organization, or place of duty with intent to remain away from the unit, organization, or place of duty permanently;

(2) Quits the member's unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service;

(3) Without being regularly separated from one of the forces of the organized militia enlists or accepts an appointment in the same or another one of the forces of the organized militia without fully disclosing the fact that the member has not been regularly separated;

(4) Without being regularly separated from one of the forces of the organized militia enters any foreign armed services without the authorization of the United States.

(B) Any commissioned officer of the organized militia who, after tender of the commissioned officer's resignation and before notice of its acceptance, quits the commissioned officer's post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.

(C) Any person found guilty of desertion or attempt to desert shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.86 Absence without leave.

Any person subject to this code who, without authority, does any of the following shall be punished as a court-martial may direct:

(A) Fails to go to the person's appointed place of duty at the time prescribed;

(B) Goes from the person's appointed place of duty;

(C) Absents self or remains absent from the person's unit, organization, or place of duty at which the person is required to be at the time prescribed.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.87 Missing movement.

Any person subject to this code who through neglect or design misses the movement of a ship, aircraft, or unit with which the person is required in the course of duty to move shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.88 Contempt toward officials.

Any commissioned officer who uses contemptuous words against the governor or the legislature of this state shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.89 Disrespect toward superior officer.

Any person subject to this code who behaves with disrespect toward the person's superior commissioned officer shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.90 Assault - willfully disobeying an officer.

Any person subject to this code who does either of the following shall be punished as a court-martial may direct:

(A) Strikes the person's superior commissioned officer or draws or lifts up any weapon or offers any violence against the person's superior commissioned officer while that officer is in the execution of official duties;

(B) Willfully disobeys a lawful command of the person's superior commissioned officer .

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.91 Insubordinate conduct toward noncommissioned officer.

Any warrant officer or enlisted member who does any of the following shall be punished as a court-martial may direct:

(A) Strikes or assaults a warrant officer or noncommissioned officer while that officer is in the execution of official duties;

(B) Willfully disobeys the lawful order of a warrant officer or noncommissioned officer;

(C) Treats with contempt or is disrespectful in language or deportment toward a warrant officer or noncommissioned officer while that officer is in the execution of official duties.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.92 Failure to obey order or regulation.

Any person subject to this code who does any of the following shall be punished as a court-martial may direct:

(A) Violates or fails to obey any lawful general order or regulation;

(B) Having knowledge of any other lawful order issued by a member of the organized militia that is the person's duty to obey, fails to obey the order;

(C) Is derelict in the performance of the person's duties .

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.93 Cruelty - maltreatment.

Any person subject to this code who is guilty of cruelty toward, or oppression or maltreatment of, any other person subject to the person's orders shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.94 Mutiny - sedition.

(A)

(1) Any person subject to this code who , with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do the person's duty or creates any violence or disturbance is guilty of mutiny .

(2) Any person subject to this code who, with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition .

(3) Any person subject to this code who fails to do the person's utmost to prevent and suppress a mutiny or sedition being committed in the person's presence, or fails to take all reasonable means to inform the person's superior commissioned officer or commanding officer of a mutiny or sedition that the person knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

(B) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.95 Arrest and confinement.

Any person subject to this code who resists apprehension , flees from apprehension, breaks arrest, or escapes from custody or confinement shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.96 Releasing prisoner without proper authority.

Any person subject to this code who, without proper authority, releases any prisoner committed to the person's charge or who through neglect or design suffers any prisoner committed to the person's charge to escape shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.97 Unlawful detention.

Any person subject to this code who, except as provided by law , apprehends, arrests, or confines any person shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.98 Noncompliance.

Any person subject to this code who is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this code or

who knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.99 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.100 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.101 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.102 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.103 Captured or abandoned property.

(A) All persons subject to this code shall secure all property taken from the enemy for the service of the United States and this state and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.

(B) Any person subject to this code who does any of the following shall be punished as a court-martial may direct:

(1) Fails to carry out the duties prescribed in division (A) of this section;

(2) Buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby the person receives or expects any profit, benefit, or advantage to self or another directly or indirectly connected with self;

(3) Engages in looting or pillaging .

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.104 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.105 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.106 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.107 False official statements.

Any person subject to this code who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

Effective Date: 10-10-1961

5924.108 Military property; loss, damage, destruction, or wrongful disposition.

Any person subject to this code who, without proper authority, does any of the following with regard to any military property of the United States or of this state shall be punished as a court-martial may direct:

(A) Sells or otherwise disposes of the property;

(B) Willfully or through neglect damages, destroys, or loses the property;

(C) Willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of

the property.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.109 Waste or destruction of nonmilitary property.

Any person subject to this code who willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States or of the state shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.110 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.111 Impaired or reckless operation of vehicles, aircraft or vessels.

(A) Subject to division (B) of this section, any person subject to this code who does any of the following shall be punished as a court-martial may direct:

(1) Operates or physically controls any vehicle , aircraft, or vessel in a reckless or wanton manner ;

(2) Operates or physically controls any vehicle, aircraft, or vessel while under the influence of alcohol, a drug of abuse, or a combination of them;

(3) Operates or physically controls any vehicle, aircraft, or vessel while having in the person's whole blood, blood serum or plasma, breath, or urine the minimum concentrations of alcohol set forth in divisions (A)(1)(b) to (A)(1)(i) of section 4511.19 of the Revised Code;

(4) Operates or physically controls any vehicle, aircraft, or vessel while having in the person's whole blood, blood serum or plasma, or urine the concentrations of controlled substances or metabolites of a controlled substance set forth in division (A)(1)(j) of section 4511.19 of the Revised Code.

(B) If a military installation is located partially in this state and partially in one or more other states, the adjutant general may select the alcohol and controlled substance levels set forth in the impaired operating laws of one of the other states to apply on the installation in place of the levels set forth in division (A) of this section.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.112 Drunk on duty.

Any person subject to this code, other than a sentinel or lookout, who is found drunk on duty shall be punished as a court-martial may direct.

Effective Date: 10-10-1961

5924.1121 Wrongful use, possession, etc., of controlled substances.

(A) As used in this section, "prohibited substance" means any of the following:

(1) Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, or marihuana or any compound or derivative of any of those substances;

(2) Any substance not specified in division (A)(1) of this section that the adjutant general lists on a schedule of controlled substances or that is listed on a schedule established under section 202 of the Federal Controlled Substances Act, 21 U.S.C. 812 , 84 Stat. 1247, as amended.

(B) A person subject to this code who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces of the United States or of the organized militia a prohibited substance shall be punished as a court-martial may direct.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

5924.113 Misbehavior of sentinel.

Any sentinel or lookout who is found drunk or sleeping on the sentinel's or lookout's post, or leaves it before the sentinel or lookout is regularly relieved, shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.114 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.115 Malingering.

Any person subject to this code who for the purpose of avoiding work, duty, or service in the organized militia does either of the following shall be punished as a court-martial may direct:

(A) Feigns illness, physical disablement, mental lapse, or derangement;

(B) Intentionally inflicts self-injury .

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.116 Riot - breach of peace.

Any person subject to this code who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.

Effective Date: 10-10-1961

5924.117 Provoking speeches or gestures.

Any person subject to this code who uses provoking or reproachful words or gestures toward any other person subject to this code shall be punished as a court-martial may direct.

Effective Date: 10-10-1961

5924.118 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.119 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.120 Rape; sexual assault; sexual contact; indecent acts; affirmative defenses.

(A) As used in this section:

(1) "Affirmative defense" means any special defense that, although not denying that the accused committed the objective acts constituting the offense charged, denies, in whole or in part, criminal responsibility for those acts.

(2) "Bodily harm" means any offensive touching of another, however slight, that does not result in grievous bodily harm.

(3) "Consent" means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person.

(4) "Dangerous weapon or object" means any of the following:

(a) Any firearm, whether loaded or not and whether operable or not;

(b) Any other weapon, device, instrument, material, or substance, whether animate or inanimate, that as used or intended to be used is known to be capable of producing death or grievous bodily harm;

(c) Any object fashioned or used in such a manner as to lead a person on whom the object is used or threatened to be used to reasonably believe under the circumstances that the object is capable of producing death or grievous bodily harm.

(5) "Force" means action to compel submission of another or to overcome or prevent another's resistance by either of the following:

(a) The use, display, or suggestion of possession of a dangerous weapon or object;

(b) Physical violence, strength, power, or restraint applied to another person sufficient to prevent the other person from avoiding or escaping sexual contact.

(6) "Grievous bodily harm" means serious bodily injury, including but not limited to fractured or dislocated bones, deep cuts, torn members of the body, and serious damage to internal organs.

(7) "Indecent conduct" means that form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person's consent and contrary to that other person's reasonable expectation of privacy, of either of the following:

(a) That other person's genitalia, anus, or buttocks, or, if that other person is female, that person's areola or nipple;

(b) That other person while that other person is engaged in a sexual act, sexual contact, or sodomy.

(8) "Lesser degree of harm" means any of the following:

(a) Physical injury to the person or property of a person other than the victim of the offense;

(b) A threat to do any of the following:

(i) Accuse any person of a crime;

(ii) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridicule;

(iii) Through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.

(9) "Mistake of fact as to consent" means a belief that is incorrect, as a result of ignorance or mistake, that a person engaging in sexual conduct consented to engage in that conduct, if both of the following apply:

(a) The ignorance or mistake existed in the mind of the accused at the time the sexual conduct in issue occurred and was based on information or lack of information that would have indicated to a reasonable person that the other person consented;

(b) The ignorance or mistake was not based on the accused's failure to discover facts that a reasonably careful person would have discovered under the same or similar circumstances.

(10) "Sexual act" means either of the following:

(a) Contact between the penis and the vulva, including any penetration, however slight;

(b) Anal intercourse, fellatio, and cunnilingus between persons, regardless of sex;

(c) The penetration, however slight, of the genital opening of another by a hand or finger or any object with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(11) "Sexual contact" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.

(12) "Sexual conduct" means any act that is prohibited by this section.

(13)

(a) For purposes of divisions (B) and (D) of this section, "threatening or placing that other person in fear" means making a communication or performing an action of sufficient consequence to cause that other person to reasonably fear that noncompliance will result in that person or another being subjected to death, grievous bodily harm, or kidnapping.

(b) For purposes of divisions (C) and (E) of this section, "threatening or placing that other person in fear" means making a communication or performing an action of sufficient consequence to cause a victim of the offense to reasonably fear that noncompliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.

(B) Any person subject to this chapter who causes another person of any age to engage in a sexual act by doing any of the following is guilty of rape and shall be punished as a court-martial may direct:

(1) Using force against that other person;

(2) Causing grievous bodily harm to any person;

(3) Threatening or placing that other person in fear;

(4) Rendering another person unconscious;

(5) Administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance that substantially impairs the ability of that other person to appraise or control conduct.

(C) Any person subject to this chapter who does either of the following is guilty of aggravated sexual assault and shall be punished as a court-martial may direct:

(1) Causes another person of any age to engage in a sexual act by doing either of the following:

(a) Threatening or placing that other person in fear;

(b) Causing bodily harm.

(2) Engages in a sexual act with another person of any age if that other person is substantially incapable of doing any of the following:

(a) Appraising the nature of the sexual act;

(b) Declining to participate in the sexual act;

(c) Communicating unwillingness to engage in the sexual act.

(D) Any person subject to this chapter who engages in sexual contact or causes sexual contact with or by another person by doing any of the following is guilty of aggravated sexual contact and shall be punished as a court-martial may direct:

(1) Using force against that other person;

(2) Causing grievous bodily harm to any person;

(3) Threatening or placing that other person in fear;

(4) Rendering another person unconscious;

(5) Administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance that substantially impairs the ability of that other person to appraise or control conduct.

(E) Any person subject to this chapter who does either of the following is guilty of abusive sexual contact and shall be punished as a court-martial may direct:

(1) Engages in or causes sexual contact with or by another person by doing either of the following:

(a) Threatening or placing that other person in fear;

(b) Causing bodily harm.

(2) Engages in sexual contact with another person of any age if that other person is substantially incapable of doing any of the following:

(a) Appraising the nature of the sexual contact;

(b) Declining to participate in the sexual contact;

(c) Communicating unwillingness to engage in the sexual contact.

(F) Any person subject to this chapter who engages in indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct.

(G) Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person's permission is guilty of wrongful sexual contact and shall be punished as a court-martial may direct.

(H) Any person subject to this chapter who intentionally exposes, in an indecent manner, in any place where the conduct involved may reasonably be expected to be viewed by people other than members of the person's family or household, the person's genitalia, anus, buttock, or female areola or nipple is guilty of indecent exposure and shall be punished as a court-martial may direct.

(I) In a prosecution under this section, in proving that the accused made a threat, it need not be proven that the accused actually intended to carry out the threat.

(J)

(1) In a prosecution under division (C)(2), (G), or (H) of this section, it is an affirmative defense that the accused and the other person, when they engaged in the sexual conduct were married to each other.

(2) Division (J)(1) of this section does not apply if the accused's intent at the time of the sexual conduct is to abuse, humiliate, or degrade any person.

(K)

(1) Lack of permission is an element of the offense under division (G) of this section. Consent and mistake of fact as to consent are affirmative defenses only to the sexual conduct in issue in a prosecution under division (B), (C), (D), or (E) of this section.

(2) The enumeration in this section of some affirmative defenses shall not be construed as excluding the existence of other affirmative defenses.

(3) The accused has the burden of proving an affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution has the burden of proving beyond a reasonable doubt that the affirmative defense did not exist.

(L)

(1) An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from an accused's use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of a person involved with the accused in the sexual conduct does not constitute consent.

(2) A person cannot consent to sexual conduct if the person is substantially incapable of any of the following:

(a) Appraising the nature of the sexual conduct due to mental impairment or unconsciousness resulting from consumption of alcohol, drugs, or a similar substance or any other cause or to mental disease or defect that renders the person unable to understand the nature of the sexual conduct;

(b) Physically declining to participate in the sexual conduct;

(c) Physically communicating unwillingness to engage in the sexual conduct.

(M) An accused's state of intoxication, if any, at the time of an offense under this section occurs is not relevant to the existence of a mistake of fact as to consent.

Added by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.121 Larceny - wrongful appropriation.

(A) Any person subject to this code who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind:

(1) With intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny; or

(2) With intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any other person other than the owner, is guilty of wrongful appropriation.

(B) Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct.

Effective Date: 10-10-1961

5924.122 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.123 Forgery.

Any person subject to this code who, with intent to defraud:

(A) Falsely makes or alters any signature to, or any part of, any writing which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice; or

(B) Utters, offers, issues, or transfers such a writing, known by him to be so made or altered; is guilty of forgery and shall be punished as a court-martial may direct.

Effective Date: 10-10-1961

5924.1231 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 09-10-1963

5924.124 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.125 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.126 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.127 Extortion.

Any person subject to this code who communicates threats to another person with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and shall be punished as a court-martial may direct.

Effective Date: 10-10-1961

5924.128 Assault.

(A) Any person subject to this code who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

(B) Any person subject to this code who does either of the following is guilty of aggravated assault and shall be punished as a court-martial may direct:

(1) Commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm;

(2) Commits an assault and intentionally inflicts grievous bodily harm with or without a weapon

.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.129 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.130 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.131 Perjury.

Any person subject to this code who, in a judicial proceeding or in a course of justice conducted under this code, willfully and corruptly does either of the following is guilty of perjury and shall be punished as a court-martial may direct:

(A) Upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry ;

(B) In any declaration, certification, verification, or statement made under penalty of perjury subscribes any false statement material to the issue or matter of inquiry.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.132 Frauds against government.

Any person subject to this code who does any of the following shall be punished as a court-martial may direct:

(A) Knowing a claim to be false or fraudulent does either of the following:

(1) Makes any claim against the United States, the state, or any officer of the United States or the state;

(2) Presents to any person in the civil or military service of the United States or the state, for approval or payment, any claim against the United States, the state, or any officer of the United States or the state;

(B) For the purpose of obtaining the approval, allowance, or payment of any claim against the United States, the state, or any officer of the United States or the state does any of the following:

(1) Makes or uses any writing or other paper knowing it to contain any false or fraudulent statements;

(2) Makes any oath to any fact or to any writing or other paper knowing the oath to be false;

(3) Forges or counterfeits any signature upon any writing or other paper or uses any forged or counterfeit signature knowing it to be forged or counterfeited;

(C) Having charge, possession, custody, or control of any money, or other property of the United States or the state, furnished or intended for the armed forces of the United States or the organized militia or any force thereof, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which the person making the delivery receives a certificate or receipt;

(D) Being authorized to make or deliver any paper certifying the receipt of any property of the United States or the state, furnished or intended for the armed forces of the United States or the organized militia or any force thereof, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States or the state .

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.133 Conduct unbecoming an officer and a lady or gentleman.

Any commissioned officer who is convicted of conduct unbecoming an officer and a lady or gentleman shall be punished as a court-martial may direct.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.134 General article.

Though not specifically mentioned in this code, all disorders and neglects to the prejudice of good order and discipline in the organized militia, all conduct of a nature to bring discredit upon the organized militia, and crimes and offenses not capital, of which persons subject to this code may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

Effective Date: 09-10-1963

5924.135 Courts of inquiry.

(A) Courts of inquiry to investigate any matter may be convened by the governor or by any other person designated by the governor for that purpose, whether or not the persons involved have requested such an inquiry.

(B) A court of inquiry consists of three or more commissioned officers. For each court of inquiry the convening authority shall also appoint counsel for the court.

(C) Any person subject to this code whose conduct is subject to inquiry shall be designated as a party. Any person subject to this code or employed in the division of military and naval affairs, who has a direct interest in the subject of inquiry, has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.

(D) Members of a court of inquiry may be challenged by a party, but only for cause stated to the court.

(E) The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath or affirmation to faithfully perform their duties.

(F) Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial.

(G) Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the convening authority.

(H) Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.

Effective Date: 10-10-1961

5924.136 Authority to administer oaths and act as notary.

(A) The following persons of the organized militia may administer oaths for the purposes of military administration, including military justice, and affidavits may be taken for those purposes before those persons who shall have the general powers of a notary public:

(1) The state judge advocate and all assistant state judge advocates;

(2) All law specialists;

(3) All summary courts-martial;

(4) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants;

(5) All commanding officers of the naval militia;

(6) All legal officers;

(7) The president, military judge, trial counsel, and assistant trial counsel for all general and special courts-martial;

(8) The president and counsel for the court of any court of inquiry;

(9) All officers designated to take a deposition;

(10) All persons detailed to conduct an investigation; and

(11) All other persons designated by regulations of the adjutant general.

(B) Officers on the state retired list shall not be authorized to administer oaths as provided in this section unless they are on active duty in or with the organized militia under orders of the governor as prescribed in this code.

(C) The signature without seal of any such person, together with the title of the person's office, is prima-facie evidence of the person's authority.

Amended by 128th General AssemblyFile No.54, HB 449, §1, eff. 9/17/2010.

Effective Date: 07-17-1970

5924.137 Articles to be explained.

Sections 5924.02 , 5924.03 , 5924.07 to 5924.15 , inclusive, 5924.25, 5924.27, 5924.31, 5924.37, 5924.38, 5924.55, 5924.77 to 5924.134, inclusive, and 5924.137 to 5924.139, inclusive, of the Revised Code, and of this code shall be carefully explained to every enlisted member at the time of his enlistment or transfer or induction into, or at the time of his order to duty in or with any of the forces of the organized militia, or within thirty days thereafter. They shall also be explained annually to each unit of the organized militia. A complete text of this code and of the regulations prescribed by the governor thereunder shall be made available to any member of the organized militia, upon his request, for his personal examination.

Effective Date: 09-10-1963

5924.138 Complaints of wrongs.

Any member of the organized militia who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the governor or adjutant general.

Effective Date: 10-10-1961

5924.139 Redress of injuries to property.

(A) Whenever complaint is made to any commanding officer that willful damage has been done to the property of any person or that his property has been wrongfully taken by members of the organized militia, he may, subject to such regulations as the governor may prescribe, convene a board to investigate the complaint. The board shall consist of from one to three officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath or affirmation, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by him shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized is conclusive, except as provided in division (C) of this section, on any disbursing officer for the payment by him to the injured parties of the damages so assessed and approved.

(B) If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be paid to the injured parties from the military fund of the unit or units of the organized militia to which such offenders belong.

(C) Any person subject to this code who is accused of causing willful damage to property, has the right to be represented by counsel, to summon witnesses in his behalf, and to cross-examine those appearing against him. He has the right of appeal to the next higher commander.

Effective Date: 10-10-1961

5924.140 Execution of process and sentence.

In the organized militia not in federal service, the processes and sentences of its courts-martial shall be executed by the civil officers prescribed by the laws of the state. Where no provision is made for executing those processes and sentences, the process and sentence shall be executed by a United States marshal or deputy marshal, who shall make a return to the military officer issuing the process or the court imposing the sentence, pursuant to Title 32, Section 333, USC.

Effective Date: 10-10-1961

5924.141 Processes and mandates.

(A) Military courts may issue all processes and mandates necessary to carry into effect the powers vested in those courts. Such courts may issue subpoenas and subpoenas duces tecum and enforce by attachment attendance of witnesses and production of books and records, when the courts are sitting within the state and the witnesses, books, and records sought are also so located.

(B) Such processes and mandates may be issued by summary courts-martial, provost courts, or the president of other military courts and may be directed to and may be executed by the marshals of the military court[s] or any peace officer and shall be in such form as may be prescribed by regulations issued under this code.

(C) All officers to whom such processes or mandates may be so directed shall execute them and make return of their acts thereunder according to the requirements of those documents. Except as otherwise specifically provided in this code, no such officer may demand or require payment of any fee or charge for receiving, executing, or returning such a process or mandate, or for any service in connection therewith.

Effective Date: 10-10-1961

5924.142 Payment and disposition of fines.

Fines may be paid to a military court or to an officer executing its process. The amount of such a fine may be noted upon any state roll or account for pay of the delinquent and deducted from any pay or allowance due or thereafter to become due him, until the fine is liquidated. Any sum so deducted shall be turned in to the military court which imposed the fine and shall be paid over by the officer receiving it in like manner as provided for other fines and moneys collected under a sentence of a summary court-martial. Notwithstanding any other law, a fine or penalty imposed by a military court upon an officer or enlisted man shall be paid by the officer collecting it within thirty days to the treasury of the organization, unit or detachment to which the officer or enlisted man who paid the fine belonged, to be accounted for in the same manner as other appropriated funds.

Effective Date: 10-10-1961

5924.143 Immunity.

No action or proceeding may be prosecuted against the convening authority or a member of a military court or officer or person acting under its authority or reviewing its proceedings because of the approval, imposition, or execution of any sentence, or the imposition or collection of a fine or penalty, or the execution of any process or mandate of a military court.

Effective Date: 10-10-1961

5924.144 Presumption of jurisdiction.

The jurisdiction of the military courts and boards established by this code shall be presumed and the burden of proof rests on any person seeking to oust those courts or boards of jurisdiction in any action or proceeding.

Effective Date: 10-10-1961

5924.145 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.146 Duty status requisite to trial or punishment.

No person may be tried or punished for any offense provided for in sections 5924.77 to 5924.134 of the Revised Code and of this code, unless it was committed while the person was in a military or national guard technician duty status.

Amended by 129th General AssemblyFile No.138, HB 490, §1, eff. 9/28/2012.

Effective Date: 09-10-1963

5924.147 [Repealed].

Repealed by 129th General AssemblyFile No.138, HB 490, §2, eff. 9/28/2012.

Effective Date: 10-10-1961

5924.148 Short title.

This chapter of the Revised Code may be cited as the "Ohio code of military justice."

Effective Date: 10-10-1961