Chapter 05. Code of Military Justice.
Article 1. Alaska Militia.
Sec. 26.05.010. Alaska militia established.
(a) The militia of the state consists of all able-bodied citizens of the United States and all other able-bodied persons who have declared their intention to become citizens of the United States, who reside in the state, who are at least 17 years of age, and who are eligible for military service under the laws of the United States or this state.
(b) The militia is divided into two classes:
(1) the organized militia, consisting of the Alaska National Guard, the Alaska Naval Militia, and the Alaska State Defense Force; and
(2) the unorganized militia, consisting of all qualified persons available for service but not serving in the organized militia.
(c) The adjutant general may, by regulation, prescribe the maximum age for eligibility in the militia.
Sec. 26.05.020. Exemption from military service.
The following are exempt from militia service: persons exempt by the laws of the United States, judges of the courts of the state, and members and officers of the state legislature.
Sec. 26.05.030. Composition of organized militia.
(a) The Alaska National Guard consists of
(1) members of the militia who have voluntarily enlisted and who, upon original enlistment, are organized, armed, equipped, and federally recognized according to the laws of the United States; and
(2) commissioned officers and warrant officers who are citizens of the United States, having the qualifications prescribed by federal law and regulations, and who are appointed and commissioned or warranted by the governor.
(b) Former members of the regular Army, Navy, or Marine Corps under 64 years of age may enlist in the Alaska Militia.
(c) The Alaska Naval Militia consists of units authorized by the governor, organized, equipped, trained, and administered as prescribed by state and federal law and regulation, and manned by personnel who are
(1) members of the United States Naval Reserve or the United States Marine Corps Reserve and
(2) enlisted, appointed, commissioned, or warranted under the laws and regulations of the United States.
(d) The Alaska State Defense Force consists of units authorized by the governor and manned by volunteer personnel qualifying under state law and regulation. All Alaska State Defense Force personnel shall be
(1) appointed, commissioned, or warranted, and assigned by the governor or the adjutant general as the governor's designee;
(2) subject to serve on state active duty at the call and by order of the governor.
(e) [Repealed, § 102 ch 127 SLA 1974.]
Sec. 26.05.040. Ratification and confirmation of existing military forces. [Repealed, § 38 ch 30 SLA 1992.]
Sec. 26.05.050. Authority for organization.
The governor as commander in chief may organize units in communities so requesting and specifically provide for organization of at least two scout battalions in the western and northwestern coastal areas and northern Arctic regions of the state, in accordance with special authority of the United States Department of Defense.
Sec. 26.05.060. Control of Alaska National Guard and Alaska Naval Militia.
The governor as ex officio commander of the militia of the state has command of the Alaska National Guard and the Alaska Naval Militia while they are not in active federal service. The governor may adopt necessary regulations for them. The Alaska National Guard and the Alaska Naval Militia and their members are subject to all federal laws and regulations relating to the National Guard and Naval Militia of the several states and territories and of the United States.
Sec. 26.05.070. Governor may order organized militia into active state service.
In the event of war, disaster, insurrection, rebellion, tumult, catastrophe, wildland fire, invasion, or riot; or if a mob or body of men act together by force with intent to commit a felony or to offer violence to persons or property, or by force and violence to break and resist the laws of the state, or the United States; or in the case of imminent danger of the occurrence of any of these events; or whenever responsible civil authorities fail to preserve law and order, or protect life and property, or the governor believes that failure is imminent, the governor may order the organized militia or any part of it, into active state service to execute the laws and to perform duties in connection with them that the governor considers proper. Whenever any portion of the militia is ordered into active state service by the governor, it becomes an additional police force, retaining its separate entity and operating at all times as a military organization under military command, with power to cooperate with but not to supersede the existing civilian law enforcement officers whenever possible, for the re-establishment of law and order and for the protection of life and property. The governor may also order members of the organized militia to active state service, with their consent, for the purpose of training or for full-time duty with the office of the adjutant general. In the event of wildland fire, the governor may delegate to the adjutant general the governor's authority under this section to order some or all of the organized militia into active state service to fight wildland fire. In this section, “wildland fire” includes the uncontrolled burning of grass, brush, timber, and other vegetative material.
Sec. 26.05.075. Leave and reemployment rights of the organized militia.
(a) An employer shall grant a leave of absence to an employee who is
(1) a member of the organized militia to perform active state service under
AS 26.05.070; or
(2) a resident of the state and a member of the National Guard of another state to perform active National Guard service under a law of that state.
(b) When an employee is released from a period of active state service under
AS 26.05.070 or active National Guard service under the law of another state, or discharged from hospitalization that arose from that active service, the employee is entitled to return to the employee's former position, or a comparable position, at the pay, seniority, and benefit level the employee would have had if the employee had not been absent as a result of that active service. An employee, other than an employee who has been hospitalized, shall report for work at the beginning of the workday following the last calendar day necessary to travel from the site of active state service, or active National Guard service in another state, to the employee's work site. An employee who has been hospitalized shall report for work at the beginning of the workday following the last calendar day necessary to travel from the hospital or place of recuperation to the employee's work site. If the employee fails to return to work at that time, the employer may impose whatever discipline is provided by the employer's rules of conduct for unexcused absence from work.
(c) If an employee is not qualified to perform the duties of the employee's position as a result of permanent disability sustained because of the employee's active state service but is qualified to perform the duties of another position with the employer, the employer shall offer an employee who requests reemployment the available, vacant position that most closely approximates the pay and benefits of the employee's previous position and that the employee is qualified for and capable of performing. An employee loses the right to reemployment under this subsection unless the employee requests reemployment within 30 days after receiving a statement from the employee's treating physician indicating both that the employee has reached maximum recovery and that the employee is released to return to full-time work.
(d) For employees other than state employees, the Department of Labor and Workforce Development shall enforce this section by appropriate regulations. For state employees, the division of personnel in the Department of Administration shall enforce this section. Regulations adopted under this section may provide for orders of reinstatement and back pay if appropriate. For employees other than state employees, contested cases arising under this section are to be handled under
AS 44.62.330 — 44.62.630. Appeals involving state employees must be made to the personnel board under the procedure set out in the state's personnel rules for grievances.
(e) Notwithstanding (f) of this section, a person aggrieved under this section may bring an action in superior court no sooner than 30 days after giving notice to the Department of Labor and Workforce Development, or, in the case of a state employee, to the director of the division of personnel. The action must be brought within two years after the claim arose.
(f) A collective bargaining agreement entered into in the state after September 2, 1990 may not contain provisions contrary to this subsection.
(g) This section does not affect
AS 39.20.340 or 39.20.350 governing paid leave and reinstatement of state and local employees for certain military activities.
(h) An employee is not entitled to return to the employee's former position, or a comparable position, at the pay, seniority, and benefit level the employee would have had if
(1) the employer's circumstances have changed, making employment impossible or unreasonable; or
(2) employment would impose an undue hardship on the employer.
(i) In this section, “state” has the meaning given in
AS 01.10.060.
Sec. 26.05.080. Decision of governor final.
Whenever any portion of the militia is ordered to duty by the governor, the decision of the governor in this matter is final.
Sec. 26.05.090. Proclamations of martial law.
The governor may proclaim martial law when the public safety requires it in case of rebellion or actual or imminent invasion, and may order all or any part of the organized militia into active state service to enforce the proclamation. The militia shall assume only those functions of civil government specified by the governor, or those that, in the discretion of the militia commander, must be assumed in order to accomplish a specific mission assigned by the governor. Martial law may not continue for longer than 20 days without the approval of a majority of the members of the legislature in joint session.
Sec. 26.05.100. Alaska State Defense Force.
A state militia, known as the Alaska State Defense Force, may be organized through voluntary enlistments under regulations as to discipline and training that may be prescribed by the governor. During the time that the Alaska National Guard or the Alaska Naval Militia, or any part of either of them, is not available to the state by reason of active federal service, or the National Guard or Naval Militia requires augmentation to perform its state mission, the governor may activate the Alaska State Defense Force.
Sec. 26.05.110. Governor may order unorganized militia into active service.
In the event of imminent invasion by a foreign power and for the same reasons set forth in
AS 26.05.070, if the governor has ordered into active service all of the available organized militia or if the organized militia is in active federal service, the governor may order the unorganized militia or any portion of it considered necessary into active service, and have them perform military duty for the state subject to this chapter, as the circumstances require.
§§ 26.05.120 — 26.05.130. Penalty for failure to obey call; penalty for physician making false certificate.
Sec. 26.05.135. Applicability of Servicemembers Civil Relief Act to members of the organized militia; contracts.
(a) The provisions of 50 U.S.C. 3901 — 4043 (Servicemembers Civil Relief Act), pertaining to consumer transactions and the temporary suspension of enforcement of civil liabilities of persons in the military service of the United States apply to members of the organized militia while on active duty for the state by order of the governor.
(b) In addition to the rights and protections provided under 50 U.S.C. 3901 — 4043 (Servicemembers Civil Relief Act) and (a) of this section, a servicemember may terminate a contract for any of the following services provided in this state if the servicemember receives official orders to relocate for a period of military service of at least 90 days to a location that does not support the contract and the servicemember provides written notice to the service provider as required under (c) of this section:
(1) Internet services;
(2) athletic club or gym memberships;
(3) satellite radio services; or
(4) television services.
(c) To terminate a contract under (b) of this section, the servicemember shall provide the service provider with (1) written notice that the servicemember is terminating the contract and the date the contract terminates, and (2) proof of the official orders calling the servicemember into active military service. If possible, the servicemember shall provide the proof of the official orders at the same time the servicemember provides written notice terminating the contract. If, because of military necessity or other circumstances, the servicemember is unable to provide proof of official orders at the time the servicemember provides written notice terminating the contract, the servicemember shall provide proof of the official orders not more than 90 days after providing written notice terminating the contract. A termination of contract under this section is effective on the later of the following: the termination date the servicemember indicates in the written notice terminating the contract or the date the servicemember provides the written notice terminating the contract.
(d) A servicemember who terminates a contract under this section may reinstate the contract when the servicemember is no longer in active military service if the servicemember provides written notice not later than 90 days after the active military service ends. Not later than 30 days after receiving a written notice of reinstatement of a contract under this subsection, a service provider shall resume providing services under the contract to the servicemember or, if the services previously provided are no longer available, shall provide substantially similar services to the servicemember.
(e) A service provider may not charge to a servicemember a penalty, fee, or other cost, or retain the deposit of a servicemember, who terminates a contract under this section. A servicemember who terminates a contract under this section is not liable for payment for any services after the effective date of the termination of a contract under this section.
(f) In this section,
(1) “organized militia” includes the units of the militia described in
AS 26.05.010(b)(1);
(2) “servicemember” means a member of the armed forces of the United States or a member of the organized militia of the state.
Sec. 26.05.140. Suits against officers and enlisted persons.
(a) Members of the militia ordered into active service for the state by order of the governor are not liable civilly for any act done by them in their official capacity while in such service. If a suit is commenced in a court against an officer or enlisted person of the militia as a result of an act done by the officer or enlisted person in an official capacity while in active service, the defendant may be defended by the attorney general at the expense of the state but the defendant may employ private counsel. Nothing in this subsection applies to a proceeding or action brought under this chapter or the code of military justice.
(b) The state has not waived its sovereign immunity and is not liable for the acts or omissions of members of the organized militia, unless those members were ordered into active state service by the governor under
AS 26.05.070 and the members were acting in the line of duty of those orders. This subsection does not apply to a civil action for damages as a result of intentional misconduct within the course and scope of employment or agency and with complete disregard for the safety and property of others.
Sec. 26.05.145. Suits by members of the military services.
(a) A civil action for damages may not be brought by or on behalf of a member of the military services against the state or against any employee of the state or any member or former member of the Alaska militia for wrongful death, personal injury, or other tort claim or injury arising out of activities that were incident to the member's military service.
(b) This section does not apply to a civil action for damages as a result of intentional misconduct within the course and scope of employment or agency and with complete disregard for the safety and property of others.
(c) In this section, “military service” means service in the United States military, the militia described in
AS 26.05.010(b), or the national guard of another state.
Sec. 26.05.150. Not liable for exercise of judgment.
A commanding officer of the Alaska militia engaged under proper authority in the suppression of any of those acts listed in
AS 26.05.070 may determine the means to be used in controlling or dispersing any mob or other unlawful assembly. A commanding officer who exercises this discretion is not liable in either a civil or criminal action for an act done in the line of duty.
Sec. 26.05.160. Appointment, qualifications, and duties of adjutant general.
(a) The adjutant general of the state is appointed by the governor. In appointing the adjutant general, the governor may give preference to a person who has served at least five years in the Alaska Army National Guard or the Alaska Air National Guard. The governor shall prescribe the grade of the adjutant general, which may not exceed lieutenant general. To be eligible for appointment as adjutant general, a person must be a citizen of the state and must be a federally recognized general-grade officer in the Alaska National Guard or an officer who has the qualifications to gain federal recognition as a general-grade officer either in active status or in retirement status eligible for reappointment as a general-grade officer. The adjutant general shall make returns and reports to the Chief, National Guard Bureau, and to the governor or to the officers designated by the Chief, National Guard Bureau, and the governor, at the times and in the form prescribed.
(b) The adjutant general shall execute a bond running to the state in the penal sum of $20,000 conditioned upon the faithful performance of the adjutant general's duties. The attorney general shall approve the bond and the bond shall be filed with the Department of Administration. The state shall pay the cost of the bond.
(c) The adjutant general is the official liaison between the state and the active military in the state. The adjutant general shall provide advice and assistance to state agencies having dealings with the active military in the state.
(d) The adjutant general is the official liaison between the state and the federal Department of Veterans Affairs. The adjutant general shall provide advice and assistance to state agencies having dealings with the federal Department of Veterans Affairs.
(e) The adjutant general is the official liaison between the state and the Federal Emergency Management Agency in the state. The adjutant general shall provide advice and assistance to state agencies having dealings with the Federal Emergency Management Agency.
Sec. 26.05.170. Governor's command and instructions exercised through the adjutant general.
The governor's command is exercised through the adjutant general, who shall carry out the policies of the governor in military affairs. The adjutant general represents the governor and shall act in conformity with the governor's instructions. The adjutant general shall exercise control over the department.
Sec. 26.05.180. Headquarters staff of Alaska National Guard.
(a) The headquarters of the Alaska National Guard is composed of an Army National Guard component, an Air National Guard component and a Naval Militia component. The Army National Guard component and the Air National Guard component shall each be commanded by an assistant adjutant general appointed by the adjutant general with the concurrence of the governor. The adjutant general may, when appointing an assistant adjutant general, give preference to a person who has served at least five years in the Alaska Army National Guard or the Alaska Air National Guard. An assistant adjutant general shall, while holding office, have the grade of brigadier general or a lower grade that the adjutant general may prescribe. On initial appointment an assistant adjutant general must hold a federally recognized field-grade commission.
(b) The adjutant general may appoint necessary officers, enlisted persons, and civilian employees to the headquarters staff.
Sec. 26.05.185. Assistant adjutant general for space and missile defense.
(a) The adjutant general, with the concurrence of the governor, may appoint an assistant adjutant general for space and missile defense. The adjutant general for space and missile defense is the official military representative of the state in matters pertaining to the development and deployment of a missile defense program in this state.
(b) The assistant adjutant general for space and missile defense shall be a federally recognized general-grade officer in the Alaska National Guard or an officer in the grade of colonel in the Alaska National Guard who has qualifications to gain federal recognition as a general-grade officer.
(c) The position of assistant adjutant general for space and missile defense is authorized for the duration of the development and deployment of a missile defense program in this state, subject to the availability of federal funding for that purpose.
Sec. 26.05.190. Administration.
(a) The adjutant general shall adopt and publish orders and regulations not contrary to law that in the adjutant general's judgment are necessary to bring the organizations, armament, equipment, and discipline of the organized militia to a high degree of efficiency. The adjutant general shall perform all the administrative functions incident to the operation of the Alaska National Guard and the Alaska Naval Militia. In addition the adjutant general shall have an inventory taken at least once each year of all state military stores, property, and funds under the jurisdiction of the adjutant general.
(b) [Repealed, § 35 ch 126 SLA 1994.]
(c) [Repealed, § 1 ch 37 SLA 1968.]
(d) [Repealed, § 1 ch 66 SLA 1967.]
(e) The adjutant general shall maintain the Alaska Decoration of Honor Roll.
Sec. 26.05.200. Officers' qualifications, appointment, and tenure.
A person may not be commissioned or warranted in an office of the National Guard or the Naval Militia of the state unless the person is examined and adjudged qualified for the office by an examining board appointed by the commander in chief, except that at the discretion of the adjutant general the proceedings of federal examining boards may be accepted instead of a state board. The composition, appointment, and procedure of examining boards and the nature and scope of examinations shall be as prescribed by the military laws or regulations of the United States or this state.
Sec. 26.05.210. Removal of officers.
(a) The adjutant general and the assistant adjutants general serve at the pleasure of the governor.
(b) When federal recognition of an officer's commission or warrant has been withdrawn, the officer's state appointment as a commissioned or warrant officer may be terminated, and the commission or warrant vacated upon the recommendation of the adjutant general and approval of the governor.
(c) When a commissioned or warrant officer has successfully completed the prescribed term of service so as to be eligible for retirement, the officer may be placed upon the retired list upon the recommendation of the adjutant general and approval of the governor.
(d) Commissioned or warrant officers may tender their resignations through National Guard or Naval Militia command channels. Resignations shall be in writing, stating the reason for resignation, and shall take effect when accepted by the adjutant general upon the approval of the governor.
Sec. 26.05.220. Retired list.
A commissioned officer and enlisted person upon reaching the maximum age prescribed for active duty by appropriate regulations and a commissioned officer or enlisted person who is disabled or incapacitated for active duty through no personal fault or dereliction, and a commissioned officer or enlisted person who serves honorably with the Alaska National Guard or with the Alaska Naval Militia in any capacity and is unable to perform further active duty due to limitations imposed by appropriate regulations may be placed upon the retired list upon recommendation by the adjutant general and approval of the governor.
Sec. 26.05.222. Creation and administration of Alaska National Guard and Alaska Naval Militia retirement system.
(a) There is established an Alaska National Guard and Alaska Naval Militia retirement system. The commissioner of administration shall administer the Alaska National Guard and Alaska Naval Militia retirement system.
(b) The commissioner of administration may adopt regulations to implement the Alaska National Guard and Alaska Naval Militia retirement system. Regulations adopted by the commissioner under this subsection relate to the internal management of state agencies and their adoption is not subject to
AS 44.62 (Administrative Procedure Act).
Sec. 26.05.223. Commencement of participation in system.
A member of the Alaska National Guard or Alaska Naval Militia shall be included in this system upon commencement of membership in the Alaska National Guard, or on January 1, 1973, whichever is later, or upon commencement of membership in the Alaska Naval Militia or on July 1, 1980, whichever is later.
Sec. 26.05.224. Retirement benefits.
(a) An active member of the Alaska National Guard, or a former member who was an active member on or after January 1, 1969, or a member of the Alaska Naval Militia on or after July 1, 1980, is eligible for a retirement pension
(1) upon voluntary retirement from the Alaska National Guard or Alaska Naval Militia after a total of 20 years or more of satisfactory service in the Alaska National Guard, Alaska Naval Militia, or the armed forces of the United States, and the reserves of them, or any combination of service in these components if at least five years of the service is in the Alaska National Guard or Alaska Naval Militia; or
(2) upon involuntary separation because of federal standards imposed on the Alaska National Guard or Alaska Naval Militia, regardless of length of service, unless the separation occurs as a result of the member's own misconduct, misrepresentation, or unwillingness to satisfy established standards for continued participation.
(b) The retirement pension is $100 a month, payable for the same number of months that the member participated satisfactorily in the Alaska National Guard or Alaska Naval Militia. The member may instead elect to receive the retirement pension
(1) in a lump sum that is actuarially determined to be equal to the value, at the time of retirement, of the entire pension due; or
(2) in a monthly amount that will result in payment by the member's 72nd birthday of an amount that is determined to be the actuarial equivalent of the entire pension due at the time of retirement.
(c) An eligible member or former member may elect to receive the retirement pension beginning on the first day of the month in which the member or former member becomes eligible for retirement, or the member or former member may elect to defer payment to a later date. Payment of a deferred retirement benefit may not begin until application for the benefit is filed with and approved by the Department of Military and Veterans' Affairs. Deferred retirement payments shall be made monthly at the rate of $100, unless the member elects another form of payment under (b) of this section.
(d) Upon the death of an active member who has at least five years service in the Alaska National Guard or Alaska Naval Militia or a combination of these components, the member's designated beneficiary is entitled to a lump sum benefit calculated in accordance with (b) of this section. Upon the death of a former member who has at least 20 years service, the former member's designated beneficiary is entitled to a lump sum benefit calculated in accordance with (b) of this section less any retirement benefits previously paid. Except as provided in (e) of this section, a member may change or revoke the designation of a beneficiary without notice to the beneficiary at any time. If a member designates more than one beneficiary, each shares equally unless the member specifies a different allocation. The member shall make a designation of a beneficiary or a change or revocation of a beneficiary on a form provided by the Department of Military and Veterans' Affairs. It is not effective until filed with the Department of Military and Veterans' Affairs. If a member fails to designate a beneficiary or if no designated beneficiary survives the member, the department, except to the extent provided otherwise in a qualified domestic relations order, shall pay the death benefit under this subsection to the
(1) surviving spouse; or, if there is none surviving,
(2) surviving children in equal parts; or, if there is none surviving,
(3) surviving parents in equal parts; or, if there is none surviving,
(4) member's estate.
(e) Notwithstanding any previous designation of beneficiary, the spouse of a member at the time of the member's death automatically becomes the designated beneficiary if the spouse was married to the member during part of the member's service under this chapter
(1) except to the extent a qualified domestic relations order provides for payment to a former spouse or other dependent of the member; or
(2) unless the member files with the Department of Military and Veterans' Affairs a revocation of beneficiary and a written consent to the revocation signed by the present spouse and each person entitled to benefits under the order on forms provided by the department; however, consent of the present spouse is not required if the member and the present spouse had been married for less than two years on the date of the member's death and if the member established when filing the revocation that the member and the spouse were not cohabiting.
(f) A person claiming entitlement to any benefits payable under this section shall provide the department with a marriage certificate, divorce or dissolution decree, or other evidence of entitlement. Documents showing entitlement may be filed with the department immediately after a change in the member's marital status. If the department does not receive notification of a claim before the date 10 days after the member's death, the person claiming entitlement to the benefits is not entitled to receive from the Department of Administration or Department of Military and Veterans' Affairs any benefit already paid under this section.
(g) Except as provided in this subsection or
AS 29.45.030(a)(1), amounts held in the system on behalf of a member or other person who is or may become eligible for benefits under the system are exempt from Alaska state and municipal taxes and are not subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge of any kind, either voluntary or involuntary, before they are received by the person entitled to the amount under the terms of the system, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, or otherwise dispose of any right to amounts accrued in the system is void. However,
(1) a member's right to receive benefits or the member contribution account may be assigned
(A) under a qualified domestic relations order; or
(B) to a trust or similar legal device that meets the requirements for a Medicaid-qualifying trust under
AS 47.07.020(f) and 42 U.S.C. 1396p(d)(4);
(2) a member may elect to have the taxable portion of the qualifying distributions transferred directly to another plan or individual retirement arrangement qualified under the federal Internal Revenue Code.
(h) Amounts held in the system and benefits payable under this section are exempt from garnishment, execution, or levy as provided in
AS 09.38 (Alaska Exemptions Act).
Sec. 26.05.225. Earlier service.
A person who was a member of the Alaska National Guard on or after January 1, 1969, is entitled to credit for service to the state and former territory of Alaska as a member of the National Guard and Territorial Guard before and after January 1, 1969, in determining eligibility for retirement benefits under
AS 26.05.224.
Sec. 26.05.226. Contributions.
(a) The Department of Military and Veterans' Affairs shall contribute to the Alaska National Guard and Alaska Naval Militia retirement system the amounts determined by the Alaska Retirement Management Board as necessary to
(1) fund the system based on the actuarial requirements of the system as established by the Alaska Retirement Management Board; and
(2) administer the system.
(b) The amount required for contributions from the Department of Military and Veterans' Affairs under (a) of this section shall be included in the annual appropriations made to the Department of Military and Veterans' Affairs.
Sec. 26.05.227. [Renumbered as AS 26.05.229.]
Sec. 26.05.228. Accounting and investment.
(a) The commissioner of administration shall establish a military retirement trust fund for the system in which the assets of the system are deposited and held. The commissioner shall maintain accounts and records for the system.
(b) All income of the fund and all disbursements made by the fund shall be credited or charged, whichever is appropriate, to the following accounts:
(1) an individual account for each retired member of the system that records the benefits paid under this system to the member or surviving beneficiary;
(2) a separate account for the Department of Military and Veterans' Affairs' contribution to fund the system based on the actuarial requirements of the system as established by the commissioner of administration under
AS 26.05.222 — 26.05.229;
(3) an expense account for the system; this account is charged with all disbursements representing administrative expenses incurred by the system; expenditures from this account are included in the governor's budget for each fiscal year.
(c) The Alaska Retirement Management Board is the fiduciary of the fund and has the same powers and duties under this section in regard to the fund as are provided under
AS 37.10.220.
Sec. 26.05.229. Definitions.
In
AS 26.05.222 — 26.05.228,
(1) “beneficiary” means a person designated by a member in a writing filed with the system by the member while alive to receive benefits that may be due from the system upon the death of the member;
(2) “member” means a commissioned or warrant officer or an enlisted person in the Alaska National Guard or Alaska Naval Militia;
(3) “qualified domestic relations order” means a divorce or dissolution judgment under
AS 25.24, including an order approving a property settlement, that
(A) creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a member;
(B) sets out the name and last known mailing address, if any, of the member and of each alternate payee covered by the order;
(C) sets out the amount or percentage of the member's benefit, or of any survivor's benefit, to be paid to the alternate payee, or sets out the manner in which that amount or percentage is to be determined;
(D) sets out the number of payments or period to which the order applies;
(E) does not require any type or form of benefit or any option not otherwise provided by
AS 26.05.222 — 26.05.228;
(F) does not require an increase of benefits in excess of the amount provided by
AS 26.05.222 — 26.05.228, determined on the basis of actuarial value; and
(G) does not require the payment, to an alternate payee, of benefits that are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order;
(4) “system” means the Alaska National Guard and Alaska Naval Militia retirement system.
Sec. 26.05.230. Armories, training sites, and maintenance facilities.
(a) Buildings and sites for armory purposes may be leased or constructed, based upon location and size of units to be organized, and shall be financed through state and federal appropriations or both. These facilities may be made available by local communities or by the cooperative arrangement between the state and the federal government and any local community. Leasing and construction under this subsection are governed by
AS 36.30 (State Procurement Code).
(b) The armory of each battalion, company, or other unit is subject to the order of the adjutant general and under the charge of its armory board which shall keep in the armory all property furnished by the state. Except for scout battalions organized under special authority of the Secretary of the Army, a unit may not be furnished with arms or equipment until a suitable armory is provided for their deposit. Subject to regulations adopted by the adjutant general, an armory may be used for any reasonable and legitimate civilian activity so long as the activity does not interfere with its use for military purposes. Proceeds received as rental or otherwise at an armory from nonmilitary use shall be deposited in the general fund.
(c) The adjutant general shall administer all target ranges belonging to or leased by the state for National Guard purposes. Gallery ranges may be maintained at all armories occupied by state troops and every command shall be given suitable instruction in marksmanship under direction of its commander, and regulations as authorized by the adjutant general.
Sec. 26.05.235. Active duty training sites.
Unless prohibited by federal regulation, no less than once every two training years, each unit of the Alaska Army National Guard shall train for annual active duty training at a site other than its regular base training site. Every effort shall be made to select a training site in a different type of environment from that of the regular base training site.
Sec. 26.05.240. Enlisted persons.
An able-bodied person of good character who is a citizen of the United States or has declared an intention of becoming a citizen is eligible for enlistment in the National Guard or Naval Militia at the ages and for the periods of time that are prescribed in federal or state regulations in effect at time of enlistment.
Sec. 26.05.250. Discharges.
An enlisted person who is discharged from service in the organized militia of the state shall receive a notice of discharge in writing in the form and classification prescribed by state law or regulations. In time of peace or when there is no declaration of national emergency, a discharge may be given before the expiration of terms of enlistment under regulations prescribed by competent authority.
Sec. 26.05.260. Pay and allowances.
(a) The adjutant general is charged with all disbursements of pay and allowances for service of the troops.
(b) When active state service is authorized by the governor or by the adjutant general as the governor's designee, members of the organized militia are entitled to receive, for each day of active service under
AS 26.05.070, pay in an amount equal to the pay received by a member of the regular armed forces of the United States in the same grade and rank as the member of the organized militia.
(c) [Repealed, § 8 ch 56 SLA 1981.]
(d) A member of the organized militia who, while performing duties under
AS 26.05.070 or training under
AS 26.05.100, including transit to and from the member's home of record, suffers an injury or disability in the line of duty is entitled to all compensation and benefits available under
AS 23.30 (Alaska Workers' Compensation Act). For a member of the Alaska State Defense Force, compensation and benefits under this subsection are provided as though the member were a state employee. A member of the organized militia who has not been ordered into active state service by the governor under
AS 26.05.070 or ordered into training under
AS 26.05.100 is not entitled to compensation and benefits under
AS 23.30 (Alaska Workers' Compensation Act).
(e) If a member of the organized militia dies as a result of an injury or disability suffered in the line of duty while performing duties under
AS 26.05.070 or training under
AS 26.05.100, including transit to and from the member's home of record, death benefits shall be paid to the persons in the amounts specified in
AS 23.30.215. For a member of the Alaska State Defense Force, the death benefits under this subsection are provided as though the member were a state employee. A person is not entitled to death benefits as specified in
AS 23.30.215 for a member of the organized militia who dies as a result of an injury or disability suffered in the line of duty but who had not been ordered into active state service by the governor under
AS 26.05.070 or ordered into training under
AS 26.05.100.
(f) [Repealed, § 8 ch 56 SLA 1981.]
(g) [Repealed, § 8 ch 56 SLA 1981.]
(h) For purposes of computation of benefits under
AS 23.30, the earnings of a member of the
(1) Alaska National Guard or Alaska Naval Militia are presumed to be no less than 200 percent of the minimum daily basic pay authorized for a member of the regular armed forces of the United States in the same grade or rank as the Alaska National Guard or Alaska Naval Militia member at the time of the injury or death;
(2) Alaska State Defense Force are presumed to be equal to the pay and allowances authorized by (j) of this section for the duties being performed by the member while on active state service at the time of the injury or death; if the member of the Alaska State Defense Force did not receive pay or allowances authorized under (j) of this section, the earnings of the member are presumed to be no less than 200 percent of the minimum daily basic pay authorized for a member of the regular armed forces of the United States in the same grade or rank as the Alaska State Defense Force member at the time of the injury or death.
(i) When active state service is authorized by the governor or by the adjutant general as the governor's designee, members of the organized militia are entitled to receive, for each day of active service under
AS 26.05.070, allowances to the same extent, in the same manner, and under the same conditions as provided for state officials and employees under
AS 39.20.110 — 39.20.170. However, pay or allowances are not authorized for training or community service activities of members of the Alaska State Defense Force.
(j) Members of the Alaska State Defense Force are not state employees. However, compensation and benefits under
AS 23.30 provided for in (d), (e), and (h) of this section for members of the Alaska State Defense Force are provided as though the member were a state employee. Nothing in this section entitles a member of the Alaska State Defense Force to retirement benefits.
(k) An order into active state service under
AS 26.05.070 constitutes an administrative order under
AS 39.20.345.
(l) When active state service is authorized by the governor for the purpose of training or full-time duty with the office of the adjutant general, members of the Alaska National Guard and Alaska Naval Militia are entitled to receive, for each day of active state service, the same benefits provided for state employees under
AS 39 so long as the member would otherwise qualify for those benefits if the member were a state employee.
(m) [Repealed, § 19 ch 7 SLA 2023.]
Sec. 26.05.262. Disposition of remains of members of organized militia.
If a member of the organized militia who is in active state service has executed the United States Department of Defense Military Record of Emergency Data Form (DD Form 93), or its successor form, to serve as a record of emergency data and, on that form, has designated a person who is authorized to direct the disposition of the member's remains if the member dies while in a duty status as described in 10 U.S.C. 1481, notwithstanding any other provision of law, the person authorized to direct the disposition of remains on the executed form has the right to make the decisions concerning the disposition of the member's remains.
Sec. 26.05.263. Payment of Servicemembers' Group Life Insurance premiums; establishment of fund.
(a) The Servicemembers' Group Life Insurance premium fund is established as a separate fund in the state treasury. The fund consists of appropriations by the legislature to it. Money appropriated to the fund does not lapse. The state shall hold the principal and earnings of the fund for the purpose of reimbursing eligible members of the Alaska National Guard deployed to a combat zone for premiums paid under 38 U.S.C. 1965 — 1980 (Servicemembers' Group Life Insurance Program).
(b) The adjutant general may make expenditures from the fund to reimburse eligible members of the Alaska National Guard deployed to a combat zone for premiums paid under the program during the period of
(1) deployment if the eligible member applies for reimbursement within two years after returning to the state following deployment;
(2) up to one year of convalescence following the return from deployment; and
(3) with the approval of the adjutant general, up to one year of convalescence in addition to the year under (2) of this subsection.
(c) Subject to appropriation, the fund may be used to pay the expenses incurred by the commissioner of revenue in managing the fund and administrative expenses incurred by the Department of Revenue in administering this section.
(d) Except as provided in (c) of this section, money in the fund is available for expenditure without further appropriation.
(e) Nothing in this section creates a dedicated fund.
(f) The Department of Revenue may adopt regulations necessary to carry out the provisions of this section.
(g) In this section,
(1) “combat zone” means an area of hostile fire or imminent danger that entitles a member on duty in that area to special pay;
(2) “convalescence” means hospital, outpatient, or rehabilitation treatment for an injury suffered while deployed to a combat zone;
(3) “fund” means the Servicemembers' Group Life Insurance premium fund;
(4) “program” means the Servicemembers' Group Life Insurance program established by 38 U.S.C. 1965 — 1980.
Sec. 26.05.265. Reenlistment bonus.
(a) Subject to legislative appropriation and (c) of this section, an enlisted member of the Alaska National Guard or the Alaska Naval Militia who extends or reenlists within 30 days after completing a term of service is entitled to a bonus if
(1) the extension or reenlistment is for the maximum authorized term;
(2) at the time of the extension or reenlistment the member has not less than three years of service creditable for retirement purposes; and
(3) on completion of the term for which the member extends or reenlists, the member will have not more than 12 years of service creditable for retirement purposes.
(b) The bonus is $500 for each year of extension or reenlistment, but may not exceed a total of $3,000 for a member's entire service. The bonus is payable at the satisfactory completion of each year of extension or reenlistment. A pro rata share of the bonus shall be paid to an enlisted member of the Alaska National Guard or Alaska Naval Militia for that portion of a year satisfactorily served before
(1) becoming ineligible because of full-time employment with the National Guard or the Department of Military and Veterans' Affairs, as described in (c) of this section;
(2) dying or being disabled, if the member's death or disability was not caused by the member's own misconduct; or
(3) being discharged from enlisted status to accept a warrant or commission as an officer in the National Guard.
(c) An enlisted member of the Alaska National Guard or Alaska Naval Militia is not eligible for the reenlistment bonus provided in (a) of this section if the enlisted member is a full-time employee of the
(1) National Guard as a technician under 32 U.S.C. 709;
(2) National Guard as an active guard reserve employee under 32 U.S.C. 502(f); or
(3) Department of Military and Veterans' Affairs whose salary is paid by the state and if the department requires that the employee belong to the Alaska National Guard or the Alaska Naval Militia in order to hold the position.
Sec. 26.05.270. Payment of military claims.
All bills, claims, and demands for military purposes shall be certified and audited as prescribed by law and shall be paid from the state general fund in the normal manner upon submission of vouchers by the adjutant general. If the organized militia, or any part of it, is called into active service of the state in case of war, disaster, insurrection, rebellion, tumult, riot, invasion, breach of peace, or to execute or enforce the law, vouchers for legally allowed pay and expenses for this service or compensation for injuries shall be drawn upon the general fund of the state treasury and paid out of money in that fund not otherwise appropriated.
Sec. 26.05.280. Transportation, subsistence, and supplies.
There shall be provided by the state, transportation and subsistence for all officers and enlisted persons who are ordered into active service by the state for encampment, field duty, or other duty. Necessary transportation, stores, and subsistence for troops when ordered on duty shall be contracted by the proper officers and paid for as other military bills. Contracting under this section is governed by
AS 36.30 (State Procurement Code).
Sec. 26.05.290. Further equipment and armories.
The governor may requisition from the Secretary of Defense the arms and equipment that are available for state forces, and make available to state forces the facilities of state armories not required by the federal government and their equipment as may be available.
Sec. 26.05.295. Educational assistance for enlisted personnel.
(a) Each active enlisted member of the Alaska National Guard or the Alaska Naval Militia who has completed the initial voluntary enlistment period of service that fulfills the mandatory requirement for military service under 50 U.S.C. App. 451 — 456, 458 — 471 (Military Selective Service Act of 1967) is eligible for educational assistance benefits in Alaska educational facilities.
(b) Except as provided in this subsection, educational programs and monetary benefits available to persons under (a) of this section are based on and equivalent to those of the United States Department of Veterans Affairs education program. Educational assistance may only be provided for a program or class in which the person is a student in good standing.
(c) [Repealed, § 5 ch 25 SLA 1997.]
(d) [Repealed, § 5 ch 25 SLA 1997.]
Sec. 26.05.296. Tuition assistance.
(a) To the extent funds are available, the adjutant general may authorize the payment of up to 100 percent of the cost of tuition and required fees for each active member of the Alaska National Guard or the Alaska Naval Militia if the member attends an educational, vocational, or technical training school in this state. The adjutant general may prioritize categories of education benefits to encourage recruitment and retention of Alaska National Guard members. Payments authorized under this section for active members of the Alaska National Guard or the Alaska Naval Militia continue so long as the active member is a student in good standing in the educational program or class and participates satisfactorily in unit training activities.
(b) [Repealed, § 5 ch 25 SLA 1997.]
Sec. 26.05.298. Definition for AS 26.05.295 and 26.05.296.
In
AS 26.05.295 and 26.05.296, “good standing” means the student is enrolled, attending, and meeting the minimum requirements for successful completion of the program or class.
§§ 26.05.300 — 26.05.330. Statement of policy on military justice; military courts for the Alaska militia; general court-martial; special court-martial; summary court-martial; appeal from court-martial convictions; expenses of military courts. [For current law see AS 26.05.360 — 26.05.900.]
Sec. 26.05.340. Restrictions on and protection of militia.
(a) In no case may any part of the Alaska National Guard, Alaska Naval Militia, or the Alaska State Defense Force be used against any labor organization or for the purpose of strike breaking within the state.
(b) No part of the state military forces may leave the state with arms and equipment without the consent of the commander in chief.
(c) A person who, either alone or with another, wilfully deprives a member of the National Guard or Naval Militia of employment or prevents the member from being self-employed or employed by another or obstructs or annoys the member or the member's employer with respect to their trade, business, or employment because the member of the National Guard or Naval Militia is a member, or in any way dissuades any person from enlisting in the National Guard or Naval Militia by threat or injury to the person with respect to the person's employment, trade or business if the person so enlists, is guilty of a misdemeanor, and upon conviction is punishable by a fine of not more than $100.
(d) All matters relating to the organization, discipline, and government of the National Guard or Naval Militia, not otherwise provided for by the laws of the United States, this chapter, or regulations adopted by the president shall be governed by regulations adopted by the adjutant general and approved by the governor, and the regulations when adopted have the same force and effect as though enacted in this chapter.
Sec. 26.05.342. Alaska Decoration of Honor.
(a) There is created an Alaska Decoration of Honor. The Alaska Decoration of Honor may be awarded to an individual who has been killed in action on or after the date Alaska achieved statehood while
(1) engaged in an action against any enemy of the United States;
(2) engaged in military operations involving conflict with an opposing foreign force;
(3) serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; or
(4) serving in or deploying to or from a combat zone as designated by presidential order.
(b) To be eligible to receive the Alaska Decoration of Honor, an individual must have been, at the time the individual was killed in action, a member of
(1) the Alaska National Guard who was a legal resident of the state;
(2) the United States military reserves who was a legal resident of the state; or
(3) the regular United States armed forces who was
(A) a legal resident of the state; or
(B) stationed in the state by a proper order of the United States Department of Defense.
(c) The Alaska Decoration of Honor shall be awarded by a concurrent resolution drafted in consultation with the adjutant general's office. The resolution must be
(1) introduced by the president of the senate, the speaker of the house of representatives, a member of the legislature who is the authorized representative of the president of the senate or the speaker of the house of representatives, or the chair of the committee of each house of the legislature with primary jurisdiction over military and veterans' affairs; and
(2) adopted by both houses of the legislature.
(d) The Joint Armed Services Committee shall make arrangements for the designing and awarding of the Alaska Decoration of Honor.
(e) The adjutant general shall
(1) annually obtain from the United States government a list of individuals who fulfill the criteria described in (a)(1) — (4) and (b)(1) — (3) of this section during the previous calendar year; and
(2) not later than December 31 each year, provide this list of individuals to the president of the senate and speaker of the house of representatives; the adjutant general may edit the list to remove from it the name of any individual whose service, in the judgment of the adjutant general, would have resulted in the individual's discharge or release under conditions that were other than honorable.
(f) The adjutant general shall enter the name of each recipient of the Alaska Decoration of Honor on the Alaska Decoration of Honor Roll maintained under
AS 26.05.190(e).
Secs. 26.05.345 — 26.05.347. Civil Air Patrol; transfer of forfeited aircraft. [Repealed, E.O. No. 59, § 3 (1985). For current law see AS 18.60.146.]
Sec. 26.05.350. Short title.
Article 2. Military Justice.
Sec. 26.05.360. Regulations; adopting military justice procedures and nonjudicial punishment.
(a) The adjutant general shall adopt regulations consistent with this chapter for members of the militia. The regulations must be approved by the governor.
(b) The regulations adopted under this section must
(1) provide for nonjudicial punishment; the regulations for nonjudicial punishment may not provide for confinement or separation from military service;
(2) as the adjutant general and the governor consider practicable, apply the principles of law and the rules of evidence and procedure governing military criminal cases in the courts of the armed forces of the United States, but may not be contrary to or inconsistent with this chapter or the applicable Alaska Rules of Evidence;
(3) include rules of pretrial, trial, and post-trial procedure, including methods of proof, for cases before courts-martial and courts of inquiry.
(c) The regulations adopted under this section are exempt from
AS 44.62 (Administrative Procedure Act).
(d) The legislature may annul regulations adopted under this section by law.
Sec. 26.05.365. Statement of policy on military justice.
Courts-martial have primary jurisdiction over offenses under this chapter, except when an act or omission violates both this chapter and local criminal law, foreign or domestic. In that case, a court-martial may be initiated only after a civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense. These jurisdictional requirements do not apply to nonjudicial punishment or administrative action taken by military authorities.
Sec. 26.05.370. Persons subject to military courts; jurisdiction.
The code of military justice applies to a member of the militia at all times, except when a member of the militia is
(1) in active federal service under 10 U.S.C. (Armed Forces); or
(2) outside the state and not in active duty status.
Sec. 26.05.375. Jurisdiction to try certain personnel.
(a) A person discharged from the militia of the state who is later charged with having fraudulently obtained a discharge is subject to trial by court-martial on that charge and is, after apprehension, subject to the code of military justice while in custody under the direction of the militia of the state for the trial. Upon conviction of the charge, the person is subject to trial by court-martial for an offense under this chapter that is committed before the fraudulent discharge.
(b) A person who has deserted from the militia of the state may not raise a defense that the person is not subject to jurisdiction under the code of military justice by virtue of a separation from a later period of service.
Sec. 26.05.380. Territorial applicability.
(a) The code of military justice applies to a member of the militia accused of or charged with an offense under this chapter that is committed outside the state if the member is in active state service under this chapter and is serving outside the state at the time the offense is committed.
(b) Courts-martial may be convened and held in units of the militia of the state while those units are serving outside the state with the same jurisdiction and powers granted under the code of military justice as if the proceedings were held inside the state. Offenses under this chapter committed by members of the militia outside the state may be tried and punished either inside or outside the state.
Sec. 26.05.385. Judge advocates.
(a) The senior force judge advocate of each force of militia of the state, or the delegate of the senior force judge advocate, shall make frequent inspections in the field in supervision of the administration of military justice in the force.
(b) A convening authority shall communicate directly with the authority's judge advocates in matters relating to the administration of military justice. The judge advocate of a command is entitled to communicate directly with the judge advocate of a superior or subordinate command or with the state judge advocate.
(c) A person who has acted as member, military judge, trial counsel, defense counsel, or investigating officer, or who has been a witness in a case may not later act as a judge advocate to an authority reviewing the same case.
(d) A person may not serve as a judge advocate under the code of military justice unless the person is a commissioned officer of the organized militia of a state or of an active or reserve component of the armed forces or another uniformed service of the United States, is a member in good standing of the bar of the highest court of a state, and is currently
(1) certified or designated as a judge advocate in the Judge Advocate General's Corps of the United States Army, Air Force, Space Force, Navy, or Marine Corps or designated as a law specialist as an officer of the United States Coast Guard, or a reserve component of one of them; or
(2) certified as a nonfederally recognized judge advocate, under the code of military justice, by the senior judge advocate of the commander of the force in the component of the militia of the state of which the accused is a member, as competent to perform the military justice duties required by the code of military justice; if a judge advocate is not available, the certification may be made by the senior judge advocate of the commander of another force in the militia of the state, as the convening authority directs.
Sec. 26.05.390. Apprehension.
(a) A member of the militia or a person authorized under 10 U.S.C. 801 - 946 or the code of military justice to apprehend persons subject to the code of military justice, a marshal of a court-martial, and a peace officer or civil officer having authority to apprehend offenders under the laws of the United States or of a state may apprehend a person subject to the code of military justice upon probable cause that an offense under this chapter has been committed and that the person apprehended committed the offense.
(b) Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to suppress disorder or mutual combat among members of the militia and to apprehend a person who participates in the disorder or mutual combat.
(c) If an offender is apprehended outside the state, the offender's return to the area must be in accordance with applicable extradition procedures, if any, or by reciprocal agreement.
(d) A person authorized by this section to apprehend, restrain, or confine persons subject to the code of military justice may not require payment of a fee for apprehending, restraining, or confining a person except as otherwise provided by law.
Sec. 26.05.395. Imposition of restraint.
(a) An enlisted member of the militia may be arrested or confined by an oral or written order issued by a commissioned officer or another member of the militia of the state acting at the commissioned officer's direction. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of the commanding officer's command or subject to the commanding officer's authority into arrest or confinement.
(b) A commissioned or warrant officer may be arrested or confined only by a commanding officer who has authority over the commissioned or warrant officer. The commanding officer shall deliver the order orally, in writing, in person, or by another member of the militia. A commanding officer may not delegate the authority granted in this subsection.
(c) A person may not be arrested or confined unless the officer issuing the order for arrest or confinement has probable cause to believe that an offense under this chapter has been committed and that the person has committed the offense.
(d) This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.
Sec. 26.05.400. Restraint of persons charged with offenses.
(a) Except as provided in (b) of this section, a person charged with an offense under this chapter may be arrested or confined as circumstances may require. A person arrested or confined before trial is entitled to prompt notice of the offense of which the person is accused.
(b) A person subject to the code of military justice who is charged with a minor offense normally tried by a summary court-martial or subject to nonjudicial punishment under the code of military justice may not be placed in confinement.
(c) When a person subject to the code of military justice is placed in confinement before summary court-martial or nonjudicial punishment, the person shall be conditionally released pending disposition of the charges.
Sec. 26.05.405. Place of confinement; reports and receiving of prisoners.
(a) A person confined as a prisoner under the code of military justice shall be confined in a civilian or military confinement facility.
(b) Unless otherwise authorized by law, a person authorized to receive a prisoner under (a) of this section may not refuse to receive or keep the prisoner committed to the person's charge by a commissioned officer of the militia of the state if the officer furnishes the person with a statement signed by the officer identifying the offense for which the prisoner was convicted.
(c) A person authorized to receive a prisoner under (a) of this section shall, within 24 hours after receiving the statement of commitment under (b) of this section, or as soon as the person is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense for which the prisoner was convicted, and the name of the person who ordered or authorized the commitment.
Sec. 26.05.410. Delivery of offenders to a civil authority.
(a) A person accused of a criminal offense against a civil authority may be delivered, upon request, to a civil authority for trial or confinement.
(b) When a sentence imposed in a court-martial proceeding under the code of military justice is interrupted by the delivery of the offender to a civil authority under this section, and the offender is later convicted and sentenced by the civil authority, competent military authority shall request the civil authority to return the offender to the custody of the military authority for completion of the sentence imposed by court-martial.
(c) The adjutant general, with the approval of the governor, may enter into an agreement with a civil authority to ensure the return of an offender under this section.
Sec. 26.05.415. Courts-martial classified.
The military courts for the militia of the state are
(1) a general court-martial, consisting of
(A) a military judge, not fewer than five members, and not fewer than one alternate member; or
(B) 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 orally on the record or in writing a court composed of only a military judge and the military judge approves;
(2) a special court-martial, consisting of
(A) a military judge, not fewer than three members, and not fewer than one alternate member; or
(B) only a military judge, if one has been detailed to the court, and the accused so requests under the conditions prescribed in (1)(B) of this section; and
(3) a summary court-martial, consisting of one commissioned officer.
Sec. 26.05.420. Jurisdiction of courts-martial in general.
Each force of the militia of the state in active military service has court-martial jurisdiction over all members of the militia. The exercise of jurisdiction by one force over personnel of another force must be in accordance with the code of military justice.
Sec. 26.05.425. Jurisdiction of a general court-martial.
Subject to
AS 26.05.420, a general court-martial has jurisdiction to try a member of the militia for an offense under this chapter and may impose a punishment not forbidden by the code of military justice.
Sec. 26.05.430. Jurisdiction of a special court-martial.
Subject to
AS 26.05.420, a special court-martial has jurisdiction to try a member of the militia for an offense under this chapter and may impose a punishment not forbidden by the code of military justice, other than dishonorable discharge, dismissal, confinement for more than one year, forfeiture of pay exceeding two-thirds pay a month, or forfeiture of pay for more than one year.
Sec. 26.05.435. Jurisdiction of a summary court-martial.
(a) Subject to
AS 26.05.420, a summary court-martial has jurisdiction to try a member of the militia except officers, cadets, candidates, and midshipmen for an offense under this chapter.
(b) A person over whom a summary court-martial has jurisdiction may not be brought to trial before a summary court-martial if the person objects.
(c) If a person accused of an offense under this chapter objects to a summary court-martial under (b) of this section, the person may be ordered tried by special or general court-martial, as appropriate.
(d) A summary court-martial may, under the limitations as the governor may prescribe, impose a punishment not forbidden by the code of military justice, other than dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month's pay.
Sec. 26.05.440. Grand jury requirement.
(a) A general court-martial in which the member of the militia is accused of committing an offense that is punishable by confinement of more than one year may not be convened until a grand jury of the state has returned a true bill indicating that there is probable cause to believe that the accused member of the militia committed the offense or offenses at issue.
(b) The general court-martial convening authority shall designate one or more judge advocates to represent the authority at the grand jury, except that, at the request of the adjutant general and with the consent of the attorney general, an attorney from the Department of Law may represent the convening authority at the grand jury.
Sec. 26.05.445. Venue for grand jury and court-martial.
The venue for convening a court-martial, trial, preliminary hearing, and presentation of charges to a state grand jury shall be determined at the discretion of the appropriate court-martial convening authority.
Sec. 26.05.450. Who may convene a general court-martial.
(a) A general court-martial may be convened by
(1) the governor;
(2) the adjutant general;
(3) the commanding officer of a force of the militia of the state;
(4) the commanding officer of a division or a separate brigade;
(5) the commanding officer of a separate wing.
(b) If a commanding officer who is authorized to convene a general court-martial is the accuser in a matter, the court hearing the matter shall be convened by superior competent authority.
(c) A superior authority may convene a case if the superior authority considers it desirable.
Sec. 26.05.455. Who may convene a special court-martial.
(a) A special court-martial may be convened by
(1) a person who may convene a general court-martial;
(2) the commanding officer of a garrison, fort, post, camp, station, Air National Guard base, or naval base or station;
(3) the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the United States Army;
(4) the commanding officer of a wing, group, separate squadron, or corresponding unit of the United States Air Force; or
(5) a commanding officer or officer in charge of any other command when empowered to do so by the adjutant general.
(b) If an officer who is authorized to convene a special court-martial is the accuser in the matter, the court hearing the matter shall be convened by superior competent authority.
(c) A superior authority may convene a case if the superior authority considers it desirable.
Sec. 26.05.460. Who may convene a summary court-martial.
(a) A summary court-martial may be convened by
(1) a person who may convene a general or special court-martial;
(2) the commanding officer of a detached company or other detachment or the commanding officer of a corresponding unit of the United States Army;
(3) the commanding officer of a detached squadron or other detachment or the commanding officer of a corresponding unit of the United States Air Force; or
(4) the commanding officer or officer in charge of any other command when empowered to do so by the adjutant general.
(b) If only one commissioned officer is present with a command or detachment, that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. If the officer who is authorized to convene a summary court-martial is the accuser in the matter, the court hearing the matter shall be convened by a superior competent authority, if practicable.
(c) A superior authority may convene a summary court-martial if the superior authority considers it desirable.
Sec. 26.05.465. Who may serve on courts-martial.
(a) A commissioned officer of the militia of a state or of an active duty component of the armed forces of the United States is eligible to serve on a general, special, or summary court-martial for the trial of a member of the militia.
(b) A warrant officer of the militia of a state or of an active duty component of the armed forces of the United States is eligible to serve on a general or special court-martial for the trial of any person, other than a commissioned officer.
(c) An enlisted member of the militia of the state who is not a member of the same unit as the accused is eligible to serve on a general or special court-martial for the trial of an enlisted member, but only if the accused has, before the conclusion of a session of the court-martial called by the military judge, personally requested, orally on the record or in writing, that enlisted members serve on the court-martial.
(d) After a request is made under (c) of this section, the accused may not be tried by a general or special court-martial unless enlisted members make up at least one-third of the total membership of the court. If eligible enlisted members are not available because of physical conditions or military exigencies, the court may proceed to try the accused without enlisted members, but the convening authority shall place on the record a detailed written explanation of why eligible enlisted members were not available.
(e) The accused may not be tried by a court-martial that includes a member who is junior in rank or grade to the accused, unless the inclusion cannot be avoided.
(f) When convening a court-martial, the convening authority shall detail the members of the militia of a state or of an active duty component of the armed forces of the United States who are, in the convening authority's opinion, the best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. A person is not eligible to serve as a member of a general or special court-martial if the person is the accuser, is a witness, or has acted as investigating officer or as counsel in the same case.
(g) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. The convening authority may delegate the authority under this subsection to a judge advocate or to a principal assistant.
Sec. 26.05.470. Military judge of a general or special court-martial.
(a) A senior force judge advocate who is in the same force as the accused, or a designee, shall detail a military judge to a general and special court-martial. The military judge shall preside over an open session of the court-martial to which the military judge has been detailed.
(b) A military judge must be
(1) an active or retired commissioned officer of the militia of a state or of an active or reserve component of the armed forces or another uniformed service of the United States;
(2) licensed to practice law in a state or a member of the bar of a federal court for at least five years;
(3) certified as qualified for duty as a military judge by a senior force judge advocate who is in the same force as the accused.
(c) The convening authority or a staff member of the convening authority may not prepare or review a report concerning the effectiveness, fitness, or efficiency of the military judge detailed to the case that relates to performance of duty as a military judge.
(d) A person may not act as military judge in a case if that person is the accuser or a witness or has acted as investigating officer or 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, or vote with the members of the court-martial.
Sec. 26.05.475. Detail of trial counsel and defense counsel.
(a) For each general and special court-martial, the convening authority shall detail trial counsel, defense counsel, and assistants, as appropriate.
(b) A person who has acted as investigating officer, military judge, witness, or court member in a case may not act as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, defense counsel or assistant or associate defense counsel in the case.
(c) A person who has acted for the prosecution may not act in the same case for the defense. A person who has acted for the defense may not act in the same case for the prosecution.
(d) Trial counsel or defense counsel detailed in a general or special court- martial must be
(1) a judge advocate or, if serving as defense counsel, otherwise certified by the senior force judge advocate; and
(2) admitted to the practice of law in this state or otherwise permitted to appear in an action in the courts of this state.
Sec. 26.05.480. Detail or employment of reporters and interpreters.
(a) 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 to interpret for the court.
(b) A person may not act as a reporter or interpreter under this section in a case if the person is the accuser, a witness, an investigating officer, counsel for a party, or, if the trial is a rehearing, a member of a prior court-martial in the same case.
Sec. 26.05.485. Absent and additional members.
(a) A member of a general or special court-martial may not be absent or excused after the court has been assembled for the trial of the accused unless the member is excused
(1) as a result of a challenge; or
(2) for good cause by the military judge or by order of the convening authority.
(b) If a general court-martial, other than a general court-martial composed of only a military judge, is reduced below five members, the military judge shall assign an available alternate member to the general court-martial to restore the court to five members. The trial may not proceed if a general court-martial, other than a general court-martial composed of only a military judge, is reduced below five members and no alternate is available for assignment.
(c) If a special court-martial, other than a special court-martial composed of only a military judge, is reduced below three members, the military judge shall assign an alternate member to the special court-martial to restore the court to three members. The trial may not proceed if a special court-martial, other than a special court-martial composed of only a military judge, is reduced below three members and no alternate is available for assignment.
(d) If the military judge of a court-martial composed of only a military judge is unable to proceed with a trial because of a challenge or for other good cause, the senior force judge advocate shall detail a new military judge. The trial shall proceed as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a written stipulation of the evidence is read in court in the presence of the new military judge, the accused, and counsel for both sides.
Sec. 26.05.490. Charges and specifications.
(a) Charges and specifications must be signed by a member of the militia under oath before a commissioned officer authorized by
AS 26.05.655 to administer oaths. The charges and specifications must state
(1) that the signer has personal knowledge of, or has investigated, the facts set out in the charges and specifications;
(2) that the charges and specifications are true in fact to the best of the signer's knowledge and belief.
(b) The person proffering the charges and specifications shall present them to the proper authority. The proper authority receiving the charges and specifications shall immediately determine the disposition of the charges in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.
Sec. 26.05.495. Compulsory self-incrimination prohibited.
(a) A member of the militia may not compel a person to make a self-incriminating statement or to answer a question if the answer may incriminate the person.
(b) A member of the militia may not interrogate or request a statement from a person suspected of an offense under this chapter without first informing the person of the nature of the accusation and advising the person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial.
(c) A member of the militia may not compel a person to make a statement or produce evidence before a military court if the statement or evidence is not material to the issue before the court and may tend to degrade the person.
(d) A statement obtained from a person in violation of this section or through the use of coercion, unlawful influence, or unlawful inducement may not be admitted into evidence against the person in a trial by court-martial.
Sec. 26.05.500. Investigation; preliminary hearing.
(a) A charge or specification may not be referred to a general court-martial for trial until an investigating officer makes a thorough and impartial investigation of all the matters set out in the charge or specification. The investigating officer shall inquire into the truth of the matters set out in the charges, consider the form of the charges, and recommend a disposition of the case in the interest of justice and discipline.
(b) The accused has the right to be represented by counsel at an investigation. If the accused requests the appointment of military counsel, the investigating officer shall refer the request to the senior force judge advocate, who shall promptly detail defense counsel to represent the accused at the investigation. Defense counsel detailed under this section shall meet the criteria for counsel under
AS 26.05.475(d).
(c) In cases where there has been no grand jury proceeding on a charge or no grand jury proceeding is required, the authority investigating the accused shall
(1) advise the accused of the charges against the accused and of the accused's right to be represented by counsel under (b) of this section;
(2) give the accused the opportunity to cross-examine witnesses against the accused, if the witnesses are available; a victim of an offense under
AS 26.05.770 or 26.05.890 — 26.05.900 may not be required to testify at a preliminary hearing; a victim of an offense under
AS 26.05.770 or 26.05.890 — 26.05.900 who declines to testify is considered unavailable for the purposes of the preliminary hearing;
(3) give the accused the opportunity to present evidence on the accused's own behalf, either in defense or mitigation relevant to the limited purposes of the hearing; the investigating officer shall examine available witnesses requested by the accused.
(d) The presentation of evidence and examination of witnesses at a preliminary hearing, including cross-examination, shall be limited to matters relevant to the limited purposes of the hearing.
(e) If, after the investigation, the charges are referred to the court-martial, the investigating officer shall prepare a statement of the charges and the substance of the testimony taken, and a copy shall be given to the accused.
(f) If an investigation of an offense under this chapter is conducted before the accused is charged with the offense and the accused is present at the investigation and provided with counsel and an opportunity to cross-examine witnesses and present evidence under (c) of this section, no further investigation of that charge is necessary under this section unless the accused demands further investigation 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 new evidence in the accused's own behalf.
(g) If evidence adduced in an investigation under this section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused's having first been charged with an offense under this chapter if the accused is
(1) present at the investigation;
(2) informed of the nature of each uncharged offense investigated; and
(3) provided with counsel and an opportunity to cross-examine witnesses and present evidence under (c) of this section.
(h) In this section, “victim” means a person who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set out in a charge or specification being considered and who is named in a specification being considered.
Sec. 26.05.505. Forwarding of charges.
(a) When a person is held for trial by general court-martial, the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and associated records, to the person exercising general court-martial jurisdiction.
(b) If it is not practicable to forward the charges and investigation and associated records under (a) of this section, the commanding officer shall provide the person with a written explanation for the delay as soon as possible.
Sec. 26.05.510. Advice of judge advocate and reference for trial.
(a) Before directing the trial of a charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the convening authority has been advised in writing by a judge advocate that
(1) the specification alleges an offense under this chapter;
(2) the specification is warranted by the evidence set out in the report of investigation under
AS 26.05.500, if there is a report; and
(3) a court-martial has jurisdiction over the accused and the offense.
(b) The advice of the judge advocate under (a) of this section with respect to a specification under a charge shall include a written and signed statement by the judge advocate
(1) stating the judge advocate's conclusions with respect to each matter set out in (a) of this section; and
(2) recommending to the convening authority what action to take regarding the specification; if the specification is referred for trial, the recommendation of the judge advocate must accompany the specification.
(c) If a charge or specification is not in the correct form or does not conform to the substance of the evidence set out in the investigating officer's report, the convening authority, with the advice of the judge advocate, may correct the charge or specification to conform to the evidence.
Sec. 26.05.515. Service of charges.
A trial counsel shall serve or cause to be served on the accused a copy of the charges. A person may not, against the person's objection, be brought to trial before a general court-martial within five days after the service of charges on the person, or before a special court-martial within three days after the service of charges on the person.
Sec. 26.05.520. Unlawfully influencing the action of a court.
(a) An authority convening a general, special, or summary court-martial, a commanding officer, or an officer serving on the staff of a convening authority or commanding officer may not censure, reprimand, or admonish the court, a member of the court, the military judge, or counsel appearing before the court, with respect to the findings of or sentence imposed by the court, or with respect to another exercise of the respective functions of the court, a member of the court, the military judge, or counsel appearing before the court in the conduct of the proceedings.
(b) A member of the militia may not attempt to coerce or, by unauthorized means, influence the action of a court-martial or a member of a court in reaching the findings or sentence in a case, or the action of a convening, approving, or reviewing authority with respect to a judicial act. This subsection does not apply to
(1) general instructional or informational courses in military justice if the courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial; or
(2) statements and instructions given in open court by the military judge, summary court-martial officer, or counsel.
(c) A member of the militia may not, in the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used, in whole or in part, for the purpose of determining whether a member of the militia of the state is qualified to be advanced in grade, in determining the assignment or transfer of a member of the militia of the state, or in determining whether a member of the militia of the state should be retained on active status,
(1) consider or evaluate the performance of duty of the member as a member of a court-martial or witness; or
(2) give a less favorable rating or evaluation of any counsel for the accused because of zealous representation before a court-martial.
(d) In this section, “unauthorized” means contrary to a statute or regulation of the United States or the state.
Sec. 26.05.525. Continuances.
The military judge of a general, special, or summary court-martial may, for reasonable cause, grant a continuance to a party for the time, and as often, as justice requires.
Sec. 26.05.530. Oaths or affirmations.
(a) Before performing their respective duties, military judges, general and special court-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused that they will perform their duties faithfully.
(b) The form of the oath or affirmation, the time and place of taking, the manner of recording, and a determination of whether the oath or affirmation shall be taken for all cases in which the duties are to be performed or for a particular case, shall be prescribed by rules of procedure. The rules may provide that, if a person takes an oath or affirmation with respect to a duty, the person need not take the oath or affirmation again on detailment to the duty.
(c) A witness before a court-martial shall be examined under oath or affirmation.
Sec. 26.05.535. Statute of limitations.
(a) A person charged with an offense under this chapter may not be tried or punished for the offense unless the person received sworn charges and specifications issued by an officer exercising court-martial jurisdiction over the command not later than three years after the commission of the offense or not later than two years after commission of the offense if the imposition of nonjudicial punishment is sought for the offense under the code of military justice.
(b) A period when the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation in this section.
(c) A period when the accused is absent from territory in which the proper authority has the ability to apprehend the accused, in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation in this section.
(d) When the United States is at war declared by the United States Congress or engaged in contingency operations ordered by the President of the United States, and those operations actually prevented the discovery of the offending behavior or the timely bringing of charges, as determined by a military judge at court-martial, the running of a period of limitation for an offense under this chapter is suspended until two years after the termination of hostilities as proclaimed by the President of the United States or by a joint resolution of the United States Congress if the offense
(1) involves fraud or attempted fraud against the United States, a state, or an agency of either, including a conspiracy to commit fraud;
(2) is committed in connection with the acquisition, care, handling, custody, control, or disposition of real or personal property of the United States or a state; or
(3) is committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of a contract, subcontract, or purchase order that is connected with or related to the prosecution of the war, or with the disposition of inventory by a war contractor or government agency.
(e) If charges or specifications are dismissed as defective or insufficient for any cause, and the period prescribed by the applicable statute of limitations has expired or will expire within 180 days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the new charges and specifications
(1) are received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications;
(2) allege the same acts or omissions that were alleged in the dismissed charges or specifications or acts or omissions that were included in the dismissed charges or specifications.
Sec. 26.05.540. Former jeopardy.
Former jeopardy protections provided to a member of the militia are equivalent to those provided under art. I, sec. 9, Constitution of the State of Alaska, and under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
Sec. 26.05.545. Pleas of the accused.
(a) If, after arraignment, an accused makes an irregular pleading or, after a plea of guilty, initiates an action inconsistent with the plea, or if the accused appears to have entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.
(b) With respect to a charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn before announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.
Sec. 26.05.550. Subpoena; process of military courts.
(a) A military judge, the president of a court-martial, or a summary court-martial officer may issue subpoenas and subpoenas duces tecum for the attendance of witnesses and production of books and records, if the courts are sitting within the state and the witnesses, books, and records sought are located in the state. A subpoena may be served by a person designated by the military judge, the president of the court-martial, or summary court-martial officer.
(b) If a person who is not a member of the militia of the state fails to comply with a subpoena issued under this section, the military judge, president of the court-martial, or summary court-martial officer may apply to a state court for an order to compel obedience by proceedings for contempt as if the subpoena had been issued by a court. The military judge, president of the court-martial, or summary court-martial officer may request the attorney general to bring the action.
(c) A person who is not a member of the militia, who has been subpoenaed to appear as a witness or to produce books and records before a court-martial or before a military or civil officer designated to take a deposition to be read in evidence before a court-martial, who has been paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a criminal court of the state, and who wilfully neglects or refuses to appear or refuses to qualify as a witness or to testify or to produce evidence that the person may have been legally subpoenaed to produce is guilty of a violation and may be charged and punished as provided in
AS 12.55.
Sec. 26.05.555. Contempt.
(a) A military judge or summary court-martial officer may punish for contempt a person who
(1) uses a menacing word, sign, or gesture in its presence;
(2) disturbs its proceedings by any riot or disorder; or
(3) wilfully disobeys a lawful writ, process, order, rule, decree, or command of the military judge or summary court-martial officer.
(b) A military judge or summary court-martial officer may punish a member of the militia for contempt as provided in
AS 09.50.020 for civil contempt.
(c) A military judge or summary court-martial officer may punish a person who is not a member of the militia for direct contempt as provided in
AS 09.50.020 for civil contempt.
Sec. 26.05.560. Defense of insanity.
(a) The accused may assert the affirmative defense of insanity as provided in
AS 12.47.010. If the accused gives notice of the defense, the accused shall file with the military judge the notice required by
AS 12.47.090.
(b) If the accused asserts the defense of insanity under (a) of this section, the court shall order an examination to be conducted that meets the standards of
AS 12.47.070.
(c) If the defense of insanity is properly at issue, the military judge shall instruct the members of the court as to the defense and charge them to find the accused
(1) guilty;
(2) not guilty; or
(3) not guilty by reason of insanity.
(d) The accused may be found not guilty by reason of insanity if
(1) a majority of the members of the court-martial present at the time the vote is taken determine that the defense of insanity has been established; or
(2) in the case of a court-martial composed of a military judge or a summary court-martial officer sitting without court members, the military judge or summary court-martial officer determines that the defense of insanity has been established.
(e) In the case of a court-martial composed of a military judge or a summary court-martial officer sitting without court members, if the defense of insanity is properly at issue, the military judge or summary court-martial officer shall find the accused
(1) guilty;
(2) not guilty; or
(3) not guilty by reason of insanity.
(f) If an accused is found not guilty by reason of insanity, trial counsel shall, within 24 hours, file a petition under
AS 47.30.700 for a screening investigation to determine the need for treatment if trial counsel has good cause to believe that the defendant is suffering from a mental illness and, as a result, is gravely disabled or likely to cause serious harm to self or others. In this subsection, “mental illness” has the meaning given in
AS 47.30.915.
Sec. 26.05.565. Lack of mental capacity or mental responsibility; commitment of accused for examination and treatment.
(a) An accused who, as a result of a mental disease or defect that renders the accused incompetent to the extent that the accused is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case, may not be tried, convicted, or sentenced for an offense under this chapter as long as the incompetency exists.
(b) If trial counsel or defense counsel has reason to believe that the accused is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case, counsel may file a motion with the military judge assigned to the case for a determination of the competency of the accused. Upon the motion, or on the judge's own motion, the court shall order an examination to be conducted and make a determination in accordance with the requirements of
AS 12.47.100. If the military judge determines that the accused must be committed for the purpose of examination, and the accused is not otherwise subject to commitment under
AS 47.30.700 - 47.30.915, the military judge shall order the convening authority to seek the assistance of the attorney general in seeking a commitment under
AS 12.47.100.
(c) If the military court determines that the accused is incompetent to stand trial and the accused is not otherwise subject to commitment under
AS 47.30.700 - 47.30.915, the military judge shall order the convening authority to seek the assistance of the attorney general in seeking a commitment under
AS 12.47.110.
(d) If, at the end of a period of commitment under (b) and (c) of this section, it is determined that the accused's mental condition has not improved so as to permit the trial to proceed, the charges shall be dismissed without prejudice, and continued commitment proceedings shall be governed by the provisions relating to civil commitment under
AS 47.30.700 - 47.30.915. If the accused remains incompetent for five years after the charges have been dismissed under this subsection, the accused may not be charged again for an offense under this chapter arising out of the facts alleged in the original charges.
(e) When the custodian of an accused person hospitalized under (c) of this section determines that the person has recovered to the extent that the accused is able to understand the nature of the proceedings against the accused and to conduct or cooperate intelligently in the defense of the case, the custodian shall promptly transmit a notification of the determination to the general court-martial convening authority for the accused and trial and defense counsel.
(f) Upon receipt of the notice, the convening authority shall promptly take custody of the accused unless the accused is no longer a member of the militia.
(g) If the accused remains a member of the militia, the military judge detailed to the case shall conduct the hearing required under
AS 12.47.120. If the judge finds the accused competent, the court-martial shall be assembled.
(h) The custodian of the accused person may retain custody of the person for not more than 30 days after transmitting the notifications required under (e) of this section.
(i) If, during a period of commitment under this section, the accused is no longer a member of the militia, the convening authority shall promptly notify the custodian and the attorney general; the custodian and the attorney general may take further action that is legally permissible.
Sec. 26.05.570. Voting and rulings.
(a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall immediately announce the result of the ballot to the members of the court on the record, in an open court, and in the presence of all parties to the trial.
(b) The military judge shall rule on all questions of law and all interlocutory questions arising during the proceedings. A ruling made by the military judge on a question of law or an interlocutory question, other than the factual issue of mental responsibility of the accused, is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial before a vote is taken on the findings. Unless the ruling is final, if a member objects to a ruling, the court shall be cleared and closed, and the question shall be decided by a voice vote as provided in
AS 26.05.575, beginning with the junior in rank.
(c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense under this chapter and charge them that
(1) the accused is presumed to be innocent until the guilt of the accused is established by legal and competent evidence beyond a reasonable doubt;
(2) 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) if there is a reasonable doubt as to the degree of guilt, a finding of guilt must be in a lower degree as to which there is no reasonable doubt; and
(4) the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the state.
(d) A military judge sitting without court members shall
(1) determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence;
(2) make a general finding and shall, in addition, on request, find the facts specially.
(e) If a military judge sitting without court members files an opinion or memorandum of decision, the opinion or memorandum of decision is sufficient if the findings of fact appear in the opinion or memorandum of decision.
Sec. 26.05.575. Number of votes required.
(a) A person may not be convicted of an offense under this chapter that is tried by a court-martial unless by the unanimous verdict of the members of the court 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, with a view toward decreasing 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 any other question is a determination in favor of the accused.
Sec. 26.05.580. Record of trial.
(a) Each general and special court-martial shall keep a separate record of the proceedings in each case brought before it, and the record must be authenticated by the signature of the military judge. If the military judge cannot authenticate the record because of the military judge's death, disability, or absence, the record shall be authenticated by the signature of the trial counsel or, if the trial counsel is unable to authenticate the record because of the trial counsel's death, disability, or absence, then by the signature of a member of the court. 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 a duty on a member under this subsection.
(b) In each general and special court-martial case resulting in a conviction, a complete verbatim record of the proceedings and testimony shall be prepared. In all other court-martial cases, the record must contain the matters as may be prescribed by rules of procedure.
(c) Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner as may be prescribed by rules of procedure.
(d) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as the record is authenticated.
Sec. 26.05.585. Cruel and unusual punishments prohibited.
A court-martial may not impose on a member of the militia punishment by flogging, branding, marking, or tattooing on the body, or another cruel or unusual punishment. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
Sec. 26.05.590. Punishments; maximum limits.
(a) A court-martial may not impose a punishment that exceeds the limits set out in the code of military justice and may not impose a sentence of death. A sentence of confinement imposed under this chapter may not exceed 10 years. An offense under this chapter that is punishable by a term of confinement of more than one year is a felony offense. Except for convictions by a summary court-martial and except as otherwise specifically provided in the code of military justice, all other offenses under this chapter are misdemeanors. A conviction by a summary court-martial is a violation.
(b) A nonjudicial punishment may not include a sentence of confinement or separation from military service.
Sec. 26.05.595. Deferment of sentences.
(a) If an accused is under sentence to confinement that has not yet been ordered executed, the convening authority or, if the accused is no longer under the convening authority's jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently detailed may, in that person's sole discretion, defer service of the sentence to confinement. The deferment terminates when the sentence is ordered to be executed. The deferment may be rescinded at any time by the authority who granted it or, if the accused is no longer under that person's jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently detailed.
(b) If a court-martial sentences an accused to confinement, the convening authority may, without the consent of the accused, defer the service of the sentence until after the accused has been permanently released to the militia of the state by a state, the United States, or a foreign country
(1) that had custody of the accused;
(2) that temporarily returned the accused to the militia of the state for trial by court-martial; and
(3) to which, after the court-martial, the militia of the state returned the accused under the authority of a mutual agreement or treaty.
(c) In a case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under
AS 26.05.615, 26.05.640, or 26.05.645 is pending, the adjutant general may defer further service of the sentence to confinement while that review is pending.
(d) In (b) of this section, “state” includes the District of Columbia and any commonwealth, territory, or possession of the United States.
Sec. 26.05.600. Execution of confinement.
A person must serve a sentence of confinement imposed by a court-martial, whether or not the sentence includes discharge or dismissal from the militia of the state, and whether or not the discharge or dismissal has been executed. The sentence may be carried into execution by confinement in a place authorized by the code of military justice. A person confined under the code of military justice is subject to the same discipline and treatment as other persons confined or committed to the place of confinement.
Sec. 26.05.605. Error of law; lesser included offense.
(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) A reviewing authority authorized under the code of military justice to approve or affirm a finding of guilt may approve or affirm, instead, so much of the finding as includes a lesser included offense under this chapter.
Sec. 26.05.610. Withdrawal of appeal.
In a case subject to appellate review under the code of military justice, the accused may, at any time, file with the convening authority a written statement expressly withdrawing the right of the accused to the appeal. The withdrawal shall be signed by both the accused and the accused's defense counsel and filed in accordance with rules of procedure.
Sec. 26.05.615. Appeal by the state.
(a) In a trial by court-martial in which a punitive discharge may be imposed, the state may appeal to the Military Appeals Commission established under this chapter
(1) an order or ruling of the military judge that terminates the proceedings with respect to a charge or specification;
(2) an order or ruling that excludes evidence that is substantial proof of a fact material 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) the refusal of the military judge to issue a protective order sought by the prosecution to prevent the disclosure of classified information;
(6) the refusal of the military judge to enforce an order issued under (5) of this subsection that was previously issued by an appropriate authority.
(b) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours after the order or ruling. The notice must 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) An appeal under this section shall be forwarded to the Military Appeals Commission under
AS 26.05.640. In ruling on the appeal, the Military Appeals Commission may act only with respect to matters of law.
(d) A period of delay resulting from an appeal under this section shall be excluded in deciding an issue involving the 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 frivolous and without merit.
(e) The state may not appeal a finding of not guilty with respect to a charge or specification by the members of the court-martial, or by a judge in a bench trial if the finding was not made on reconsideration.
Sec. 26.05.620. Vacation of suspension.
(a) A probationer serving a period of probation under a sentence suspended by a special court-martial that, as approved, includes a bad-conduct discharge, or a suspended general court-martial sentence, is entitled to a hearing before the suspension is vacated. The probationer shall be represented at the hearing by military counsel if the probationer requests representation.
(b) If the suspended sentence was imposed by a special court-martial, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. 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 probationer. If the officer vacates the suspension, the unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in the code of military justice.
(c) The suspension of another sentence may be vacated by an authority for the command in which the accused is serving or detailed who is competent to convene a court of the kind that imposed the sentence.
Sec. 26.05.625. Petition for a 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 grounds of newly discovered evidence or fraud on the court-martial.
Sec. 26.05.630. Restoration.
(a) 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 is included in a sentence imposed on 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 governor may substitute an administrative form of discharge 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 governor may substitute an administrative form of discharge, and a commissioned officer dismissed under the original sentence may be reappointed by the governor alone to the commissioned grade and rank that, in the opinion of the governor, the former officer would have attained had the officer not been dismissed. The reappointment of the former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only to the extent the governor may direct. The time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.
Sec. 26.05.635. Leave required to be taken pending review of court-martial convictions.
In accordance with rules adopted under
AS 26.05.360, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this chapter if the sentence 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 the code of military justice, or at any time after that date, and the leave may be continued until the date on which action under this chapter is completed, or may be terminated at an earlier time.
Sec. 26.05.640. Military Appeals Commission.
(a) The Military Appeals Commission is established in the Department of Military and Veterans' Affairs. The commission is a quasi-judicial agency.
(b) The commission has
(1) jurisdiction to hear appeals from courts-martial by the
(A) state in accordance with
AS 26.05.615; and
(B) accused regarding sentences, punishments, clearly erroneous findings, and matters of law; and
(2) the discretion to remand those cases to a competent court-martial.
(c) The commission consists of three members appointed by the governor and confirmed by a majority of the members of the legislature in joint session. A member shall be a resident of this state and
(1) be licensed to practice law
(A) in this state and be a member in good standing of the Alaska Bar Association;
(B) in another state and be a member in good standing of the bar of that state; or
(C) as a member of the bar of a federal court;
(2) have engaged in the active practice of law for at least five years;
(3) be a former commissioned officer in the armed forces of the United States or the reserve components, or in the militia of a state; and
(4) have at least five years' experience as an officer in the judge advocate general's corps of the armed forces of the United States or the militia of the state.
(d) Except as provided in
AS 39.05.080(4), an appointee selected to fill a vacancy shall hold office for the unexpired term of the member whose vacancy is filled. A vacancy in the commission does not impair the authority of a quorum of members to exercise the powers and perform the duties of the commission.
(e) A member may be reappointed if the reappointment complies with this section.
(f) The members of the commission shall select a chair from among the members of the commission. The selection shall be subject to the approval of the adjutant general.
(g) The governor may remove a commissioner from office for cause including incompetence, neglect of duty, or misconduct in office. A commissioner, to be removed for cause, shall be given a copy of the charges and offered an opportunity to be publicly heard in person or by counsel in the commissioner's own defense upon not less than 10 days' notice. If a commissioner is removed for cause, the governor shall file with the lieutenant governor a complete statement of all charges made against the commissioner and the governor's finding based on the charges, together with a complete record of the proceedings.
(h) The adjutant general shall adopt regulations to govern appellate procedure before the Military Appeals Commission. The regulations shall be substantially similar to the provisions for post-trial procedure and review of courts-martial under 10 U.S.C. 801 - 946. The regulations must be approved by the governor. Regulations adopted under this section are exempt from
AS 44.62 (Administrative Procedure Act).
(i) The governor may appoint an alternate member, who will serve temporarily in cases where a Military Appeals Commission member is removed or otherwise unavailable to perform the duties of a commission member. The alternate member must be confirmed by a majority of the members of the legislature in joint session and otherwise meet the qualifications specified in (c) of this section.
Sec. 26.05.645. Review by civilian court.
(a) After exhausting all remedies available under the code of military justice, a party may file a petition for review in the Alaska supreme court from a final decision of the Military Appeals Commission that upholds a conviction and sentence imposed by a general or special court-martial for an offense under this chapter if the sentence
(1) includes confinement imposed under the code of military justice; and
(2) meets the criteria for appeal under
AS 12.55.120.
(b) A decision by the Alaska supreme court on a matter reviewed under a petition filed under (a) of this section is final and binding on all parties, the Military Appeals Commission, and the court-martial.
(c) A party filing a petition for review under this section shall comply with the rules of court applicable to petitions for review in the appellate courts, including the deadlines for filing.
Sec. 26.05.650. Appellate and civilian counsel.
(a) If the attorney general requests representation, the senior force judge advocate shall detail a judge advocate as appellate counsel to represent the state in a proceeding filed under
AS 26.05.640 as civilian counsel, in a petition filed under
AS 26.05.645, or as counsel before any federal court.
(b) The accused has the right to be represented by detailed military counsel before the Military Appeals Commission under
AS 26.05.640 and before the reviewing court in a petition filed under
AS 26.05.645.
(c) Upon the request of an accused entitled to be represented under (b) of this section, the senior force judge advocate shall detail a judge advocate to represent the accused in a review or appeal. Counsel detailed under this subsection shall meet the criteria for counsel under
AS 26.05.475(d).
(d) A person who has acted as investigating officer, trial counsel, military judge, witness, or court member in the case may not act as civilian review counsel for the accused detailed under (c) of this section.
(e) An accused may choose to be represented by civilian counsel at the expense of the accused.
Sec. 26.05.655. Authority to administer oaths and act as notary public.
(a) The following persons may administer oaths for the purposes of military administration, including military justice:
(1) a judge advocate;
(2) a summary court-martial;
(3) the adjutant general and assistant adjutant generals;
(4) a commanding officer of the militia;
(5) a person authorized by federal or state statute or regulation or by regulations of the armed forces of the United States or the state to administer oaths or act as a notary public.
(b) The following persons may administer oaths necessary in the performance of their duties:
(1) the president, military judge, and trial counsel for general and special courts-martial;
(2) an officer designated to take a deposition;
(3) a person detailed to conduct an investigation;
(4) a recruiting officer;
(5) a person authorized by federal or state statute or regulation or by regulations of the armed forces of the United States to administer oaths or act as a notary public.
(c) The person's signature without seal, together with the title of the person's office, is prima facie evidence of the person's authority to administer oaths and act as a notary public under this section.
Sec. 26.05.660. Delegation by the governor.
The governor may delegate any authority vested in the governor under the code of military justice, and provide for the subdelegation of the authority, except the powers given to the governor by
AS 26.05.170 and 26.05.450.
Sec. 26.05.665. Military justice account.
(a) The military justice account is established in the general fund for the purpose of paying the expenses of the department in carrying out its duties relating to the code of military justice, including the fees and authorized travel expenses of witnesses, experts, victims, court reporters, and interpreters, fees for the service of process, costs of collection, apprehension, detention, and confinement, pay and allowances for court-martial duty, and all other necessary expenses of the prosecution and administration of military justice not otherwise payable by another source.
(b) The account consists of money appropriated to it by the legislature and interest received on money in the account.
(c) The department may use money appropriated to the account to pay for expenses related to the duties described in (a) of this section.
(d) Money appropriated to the account does not lapse.
(e) Nothing in this section creates a dedicated fund.
(f) In this section, “account” means the military justice account established under (a) of this section.
Sec. 26.05.670. Payment, collection, and deposit of fines.
(a) A fine imposed by a military court or through the imposition of nonjudicial punishment may be paid to the state and delivered to the court or imposing officer, or to a person executing process.
(b) If the person on whom the fine was imposed fails to pay, the department may collect the fine by
(1) retaining pay or allowances due or to become due to the person fined from the militia of the state or the United States;
(2) garnishment or levy, together with costs, on the wages, goods, and property of a person delinquent in paying a fine in accordance with
AS 09.38.
(c) A fine or penalty required to be paid under this section shall be deposited into the general fund and accounted for under
AS 37.05.142.
Sec. 26.05.675. Pay and allowances for court-martial duty.
For each day of duty as a member of a general court-martial, or as a witness under summons from the president or judge advocate of the court, officers and enlisted persons shall be paid as provided in
AS 26.05.260(b).
Sec. 26.05.680. Uniformity of interpretation.
The code of military justice shall be construed to carry out its general purpose and, so far as practicable, in a manner uniform with 10 U.S.C. 801 - 946.
Sec. 26.05.685. Immunity for action of military courts.
A person acting under the code of military justice, whether as a member of the militia or as a civilian, shall be immune from any personal liability for any of the acts or omissions that the person did or failed to do as part of the person's duties under the code of military justice.
Sec. 26.05.690. Principals.
A member of the militia who commits an offense under this chapter, or aids, abets, counsels, commands, solicits, or procures the commission of the offense, or causes an act to be done that, if directly performed by the member, would be punishable under this chapter, is a principal.
Sec. 26.05.695. Accessory after the fact.
A member of the militia who, knowing that an offense under this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender's apprehension, trial, or punishment may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.697. Misprision of serious offense.
A member of the militia who (1) knows that another person has committed a serious offense, (2) wrongfully conceals the commission of the offense, and (3) fails to make the commission of the offense known to a civilian or military authority as soon as possible may be punished by up to three years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.700. Conviction of lesser included offense.
An accused may be found guilty of an offense necessarily included in the offense charged, of an attempt to commit either the offense under this chapter charged or an offense necessarily included in the offense charged, or of an offense designated by the President of the United States, in the most recent Manual for Courts-Martial, United States, as a presidentially prescribed lesser included offense under 10 U.S.C. 879.
Sec. 26.05.705. Attempts.
(a) An act done with specific intent to commit an offense under this chapter that amounts to more than mere preparation and tends, even though failing, to effect its commission, is an attempt to commit the offense.
(b) A member of the militia who attempts to commit an offense under this chapter may be punished as a court-martial may direct, unless otherwise specifically prescribed. However, a court-martial may not direct a punishment for an attempt to commit an offense that is greater than the maximum punishment for the offense.
(c) A member of the militia may be convicted of an attempt to commit an offense under this chapter even if it appears, at the trial, that the offense was consummated.
Sec. 26.05.710. Conspiracy.
A member of the militia who conspires with another person to commit an offense under this chapter may, 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, unless otherwise specifically prescribed. However, a court-martial may not direct a punishment for conspiracy to commit an offense that is greater than the maximum punishment for the offense.
Sec. 26.05.715. Solicitation.
(a) A member of the militia who solicits or advises another or others to desert in violation of
AS 26.05.730 or to mutiny in violation of
AS 26.05.775 may, 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 attempted or committed, the member may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of
AS 26.05.800 or an act of sedition in violation of
AS 26.05.775 may, 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 member may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who solicits or advises another person to commit an offense under this chapter, other than an offense specified in (a) or (b) of this section, may be punished by confinement for up to the maximum punishment of the underlying offense, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.720. Fraudulent enlistment, appointment, or separation.
A person who procures the person's own enlistment or appointment in the militia of the state by knowingly false representation or deliberate concealment as to the person's qualifications for the enlistment or appointment and receives pay or allowances under the enlistment or appointment, or procures the person's own separation from the militia of the state by knowingly false representation or deliberate concealment as to the person's eligibility for that separation, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.725. Unlawful enlistment, appointment, or separation.
A member of the militia who effects an enlistment or appointment in or a separation from the militia of the state of a person who is known to the member to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.730. Desertion.
(a) A person is guilty of desertion if the person is a member of the militia and
(1) without authority, goes or remains absent from the person's unit, organization, or place of duty with intent to remain away from the unit, organization, or place of duty permanently;
(2) quits the person's unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one force of the militia of the state,
(A) enlists or accepts an appointment in the same or another force of the militia of the state, the military forces of another state, or one of the armed forces of the United States, without fully disclosing the fact that the person has not been regularly separated; or
(B) enters a foreign armed service except when authorized by the United States.
(b) A commissioned officer of the militia commits the offense of desertion if, after tender of the officer's resignation and before notice of its acceptance, the officer quits the officer's post or proper duties without leave and with intent to remain away permanently.
(c) A person found guilty of desertion or attempt to desert may be punished, if the offense is committed in time of war, or emergency as described in
AS 26.05.070,
(1) by confinement of not more than 10 years, by separation with a characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the offense is committed in time of war;
(2) by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the desertion or attempt to desert occurs at a time other than a time of war.
Sec. 26.05.735. Absence without leave.
A member of the militia who, without authority, (1) fails to go to the member's appointed place of duty at the time prescribed, (2) goes from the member's place of duty, or (3) is absent or remains absent from the member's unit, organization, or place of duty at which the member is required to be at the time prescribed may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.737. False or unauthorized pass offenses.
(a) A member of the militia who wrongfully and falsely makes, alters, counterfeits, or tampers with a military or official pass, permit, discharge certificate, or identification card may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who wrongfully sells, gives, lends, or disposes of a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who wrongfully uses or possesses a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.740. Missing movement; jumping from vessel.
A member of the militia who, (1) through neglect or design, misses the movement of a ship, aircraft, or unit with which the member is required, in the course of duty, to move, or (2) intentionally or wrongfully jumps into the water from a vessel in use by the armed forces may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.745. Contempt toward officials.
(a) A commissioned officer of the militia who uses contemptuous words against the President or Vice President of the United States, the United States Congress, the United States Secretary of Defense, the United States Secretary of Homeland Security, the secretary of a military department of the United States, or the governor or legislature of this state may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement under this section.
Sec. 26.05.750. Disrespect toward superior commissioned officer.
(a) A member of the militia who behaves with disrespect toward the member's superior commissioned officer may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement under this section.
Sec. 26.05.755. Assaulting or wilfully disobeying superior commissioned officer.
A member of the militia who (1) strikes the member's superior commissioned officer or draws or lifts up any weapon or offers any violence against the superior officer while the superior officer is in the execution of the superior officer's office, or (2) wilfully disobeys a lawful command of the member's superior commissioned officer may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.760. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.
A warrant officer or enlisted member of the militia who (1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while the officer is in the execution of the officer's office, (2) wilfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer, or (3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while the officer is in the execution of the officer's office may be punished by up to two years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.765. Failure to obey order or regulation.
Any member of the militia who (1) violates or fails to obey a lawful general order or regulation, (2) having knowledge of any other lawful order issued by a member of the militia of the state that the member has a duty to obey, fails to obey the order, or (3) is derelict in the performance of the member's duties may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.767. Impersonation of officer, noncommissioned officer, petty officer, agent, or official.
(a) A member of the militia who wrongfully and wilfully impersonates (1) an officer, noncommissioned officer, or petty officer, (2) an agent of superior authority of one of the armed forces of the United States or of the militia of the state, or (3) an official of a government shall be punished as a court-martial may direct.
(b) A member of the militia who wrongfully, wilfully, and with intent to defraud impersonates (1) an officer, noncommissioned officer, or petty officer, (2) an agent of superior authority of one of the armed forces of the United States or of the militia of the state, or (3) an official of a government may be punished by up to three years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who wrongfully, wilfully, and without intent to defraud impersonates an official of a government by committing an act that exercises or asserts the authority of the office that the person claims to have may be punished by up to six months of confinement, by separation with characterization up to bad-conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.768. Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button.
A member of the militia who wears on the member's uniform or civilian clothing an insignia, decoration, badge, ribbon, device, or lapel button that the member is not authorized to wear may be punished by up to six months of confinement, by separation with characterization up to bad-conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.770. Cruelty and maltreatment.
A member of the militia who is guilty of cruelty toward, or oppression or maltreatment of, another person subject to the member's orders may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.775. Mutiny or sedition.
(a) A member of the militia is guilty of mutiny if the member, with intent to usurp or override lawful military authority, refuses, in concert with another person, to obey orders or otherwise do the member's duty or creates violence or a disturbance.
(b) A member of the militia is guilty of sedition if the member, with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with another person, revolt, violence, or other disturbance against the authority.
(c) A member of the militia is guilty of a failure to suppress or report a mutiny or sedition if the member fails to do the member's utmost to prevent and suppress a mutiny or sedition being committed in the member's presence or fails to take all reasonable means to inform the member's superior commissioned officer or commanding officer of a mutiny or sedition that the member knows or has reason to believe is taking place.
(d) A member who is found guilty of mutiny, sedition, or failure to suppress or report a mutiny or sedition under this section may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.780. Resistance, flight, breach of arrest, and escape.
A member of the militia who (1) resists apprehension, (2) flees from apprehension, (3) breaks arrest, or (4) escapes from custody or confinement may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.785. Releasing prisoner without proper authority; drinking or using drugs with prisoner.
(a) A member of the militia who, without proper authority, releases a prisoner committed to the member's charge or, through neglect or design, suffers a prisoner to escape may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.
(b) A member of the militia who unlawfully drinks an alcoholic beverage with a prisoner or unlawfully uses a drug with a prisoner may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-marshal may direct, whether or not the prisoner was committed in strict compliance with law.
Sec. 26.05.790. Unlawful detention.
A member of the militia who, except as provided by law or regulation, apprehends, arrests, or confines another person may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.793. Wrongful interference with adverse administrative proceeding.
A member of the militia who, having reason to believe that an adverse administrative proceeding is pending against a person subject to this chapter, wrongfully acts with the intent to influence, impede, or obstruct the conduct of the proceeding or otherwise obstruct the due administration of justice may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.795. Noncompliance with procedural rules.
A member of the militia who knowingly and intentionally
(1) is responsible for unnecessary delay in the disposition of the case of another person accused of an offense under this chapter may be punished by up to six months of confinement, by separation with characterization up to a bad conduct discharge, and by such other punishment as a court-martial may direct; or
(2) fails to enforce or comply with a provision of this chapter regulating the proceedings before, during, or after trial of an accused may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.796. Wrongful refusal to testify.
A member of the militia who, during a preliminary hearing or in the presence of a court-martial, board of officers, military commission, court of inquiry, or officer taking a deposition of or for the state, wrongfully refuses to qualify as a witness or answer a question after having been directed to do so by the person presiding over the proceeding may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.798. Retaliation.
A member of the militia who, with the intent to retaliate against a person for reporting or planning to report a criminal offense or for making or planning to make a protected communication, or who, with the intent to discourage any person from reporting a criminal offense or from making or planning to make a protected communication, (1) wrongfully takes or threatens to take an adverse personnel action against a person or (2) wrongfully withholds or threatens to withhold a favorable personnel action with respect to a person may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.800. Misbehavior before the enemy.
(a) A member of the militia is guilty of misbehavior before the enemy if the member is before or in the presence of the enemy, or is facing a threat as described in
AS 26.05.070, and
(1) runs away;
(2) shamefully abandons, surrenders, or delivers up a command, unit, place, or military property that the member has a duty to defend;
(3) through disobedience, neglect, or intentional misconduct, endangers the safety of the command, unit, place, or military property;
(4) casts away the member's arms or ammunition;
(5) engages in cowardly conduct;
(6) quits a place of duty to plunder or pillage;
(7) causes false alarms in a command, unit, or place under control of the armed forces of the United States or the militia of the state;
(8) wilfully fails to do the utmost to encounter, engage, capture, or destroy enemy troops, combatants, vessels, aircraft, or other thing that the member has a duty to encounter, engage, capture, or destroy; or
(9) does not afford all practicable relief and assistance to the troops, combatants, vessels, or aircraft of the armed forces of the United States or an ally of the United States, this state, or another state when engaged in battle.
(b) A member found guilty of misbehavior before the enemy under this section may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.805. Subordinate compelling surrender.
A member of the militia who compels or attempts to compel the commander of the militia of this state or of any other state, of a place, a vessel, an aircraft, or another military property, or of a body of members of the armed forces to give it up to an enemy or to abandon it in the face of a threat described in
AS 26.05.070, or who strikes the colors or flag to an enemy without proper authority, may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.810. Improper use of countersign.
A member of the militia who, in time of war, or emergency as described in
AS 26.05.070, discloses the parole or countersign to a person not entitled to receive it or who gives to another person who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to the person's knowledge, the member was authorized and required to give may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.815. Forcing a safeguard.
A member of the militia who forces a safeguard may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.820. Captured or abandoned property.
(a) A member of the militia shall secure all public property taken for the service of the United States or the state and shall give notice and turn over to the proper authority without delay all captured or abandoned property in the member's possession, custody, or control.
(b) A member of the militia who
(1) fails to carry out the duties prescribed in (a) of this section and buys, sells, trades, or in any way deals in or disposes of taken, captured, or abandoned property, as a result of which the member receives or expects to receive any profit, benefit, or advantage to the member or another person directly or indirectly connected with the member may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct; or
(2) engages in looting or pillaging may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.825. Aiding the enemy.
A member of the militia who (1) aids or attempts to aid the enemy or a hostile individual or group as described in
AS 26.05.070 with arms, ammunition, supplies, money, or other things, or (2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with, the enemy or hostile individual or group, either directly or indirectly, may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.830. Misconduct as prisoner.
A member of the militia who, while in the hands of the enemy or a hostile individual or group as described in
AS 26.05.070, (1) for the purpose of securing favorable treatment by the person's captors, acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of other persons of whatever nationality held by the enemy or hostile individual or group as civilian or military prisoners, or (2) while in a position of authority over a person, maltreats the person without justifiable cause may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.833. Offenses against correctional custody and restriction.
(a) A member of the militia who (1) is placed in correctional custody by a person authorized to do so, (2) is placed under physical restraint while in correctional custody, and (3) escapes from the physical restraint before the member is released from physical restraint by proper authority may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who (1) is placed in correctional custody by a person authorized to do so, (2) is placed under restraint other than physical restraint while in correctional custody, and (3) goes beyond the limits of the restraint before the member is released from or relieved of the restraint by proper authority may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who (1) is ordered to be restricted to certain limits by a person authorized to do so and (2) with knowledge of the limits of the restriction, goes beyond the limits before the member is released from the limitations by proper authority may be punished by up to six months of confinement, by separation with characterization up to bad-conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.835. False official statements or oaths.
(a) A member of the militia who, with intent to deceive, signs a false record, return, regulation, order, or other official document made in the line of duty, knowing it to be false, or makes a false official statement in the line of duty, knowing it to be false, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who (1) takes an oath that is in a matter in which the oath is required or authorized by law and that is administered by a person who has the authority to administer the oath and (2) makes or subscribes to a statement that is false and that the person does not believe to be true at the time the person takes the oath may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.840. Military property; loss, damage, destruction, or wrongful disposition.
A member of the militia who, without proper authority, (1) sells or otherwise disposes of, (2) wilfully or through neglect damages, destroys, or loses, or (3) wilfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of, military property of the United States or of any state, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.845. Property other than military property; waste, spoilage, or destruction.
A member of the militia who wilfully or recklessly wastes, spoils, or otherwise wilfully and wrongly destroys or damages any property other than military property of the United States or of any state may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.850. Improper hazarding of vehicle, aircraft, or vessel.
(a) A member of the militia who wilfully and wrongfully hazards or suffers to be hazarded a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of the state may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who negligently hazards or suffers to be hazarded a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of the state may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.855. Drunken, impaired, or reckless operation of a vehicle, aircraft, or vessel.
(a) A member of the militia who operates or physically controls a nonmilitary vehicle, aircraft, or vessel in a negligent or reckless manner may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct if the charge is for negligent operation or control, or by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the charge is for reckless operation or control. A court-martial may not impose a sentence of confinement under this subsection if the charge is for negligent operation or control.
(b) A member of the militia who (1) operates or physically controls a nonmilitary vehicle, aircraft, or vessel while impaired by a controlled substance, or (2) operates or is in actual physical control of a nonmilitary vehicle, aircraft, or vessel while under the influence of alcohol or when the alcohol concentration in the person's blood or breath is equal to or exceeds the applicable limit under (d) of this section may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct, or under (e) of this section if the member is not in active duty status at the time of the offense, or by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the member is in active duty status at the time of the offense.
(c) A member of the militia who (1) operates or physically controls a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of a state in a negligent or reckless manner or while impaired by a controlled substance, or (2) operates or is in actual physical control of a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of a state while under the influence of alcohol or when the alcohol concentration in the person's blood or breath is equal to or exceeds the applicable limit under (d) of this section may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(d) For purposes of (b) and (c) of this section,
(1) in the case of the operation or control of a vehicle, aircraft, or vessel in the United States, the applicable limit on the alcohol concentration in a person's blood or breath is the lesser of
(A) the blood alcohol content limit under the law of the state in which the conduct occurred, except as provided under (3) of this subsection for conduct on a military installation that is in more than one state; and
(B) the blood alcohol content limit under
AS 28.35.030;
(2) in the case of the operation or control of a vehicle, aircraft, or vessel outside the United States, the applicable blood alcohol content limit is 0.10 grams of alcohol for each 100 milliliters of blood with respect to alcohol concentration in a person's blood and is 0.10 grams of alcohol for each 210 liters of breath with respect to alcohol concentration in a person's breath, as shown by chemical analysis or a lower limit that the Secretary of Defense may prescribe by regulation;
(3) in the case of a military installation that is in more than one state, if those states have different blood alcohol content limits under their respective state laws, the Secretary of Defense may select one of the blood alcohol content limits to apply uniformly on that installation.
(e) A member of the militia may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the member of the militia is convicted under (b) of this section and has been previously convicted two or more times within the 10 years preceding the date of the present offense.
(f) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “blood alcohol content limit” means the amount of alcohol concentration in a person's blood or breath at which operation or control of a vehicle, aircraft, or vessel is prohibited;
(2) “nonmilitary” means not of the armed forces of the United States or of the militia of a state;
(3) “state” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa;
(4) “United States” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.
Sec. 26.05.860. Drunkenness and other incapacitating offenses.
(a) A member of the militia, other than a sentinel or lookout, who (1) is found under the influence of alcohol or a controlled substance while on duty, or (2) as a result of the use of any alcoholic beverage or drug, is unable to properly perform the member's duty may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who, while a prisoner, is drunk or under the influence of a controlled substance other than a controlled substance taken in accordance with a valid prescription may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct
Sec. 26.05.865. Misbehavior of sentinel.
A sentinel or lookout who (1) as a result of the use of any alcoholic beverage or drug, is unable to properly perform the sentinel's or lookout's duties, (2) is found sleeping on the sentinel's or lookout's post, (3) leaves the sentinel's or lookout's post before being regularly relieved, or (4) loiters or wrongfully sits down on post may be punished, if the offense is committed in time of war or emergency as described in
AS 26.05.070, by confinement of not more than 10 years, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct, but if the offense is committed at any other time, by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.867. Disrespect toward sentinel or lookout.
A member of the militia who, knowing that another person is a sentinel or lookout, uses wrongful and disrespectful language or behaves in a wrongful and disrespectful manner that is directed toward and within the hearing of the sentinel or lookout while the sentinel or lookout is executing the sentinel or lookout's duties may be punished by separation with characterization up to dishonorable discharge and by such other punishment, without confinement, as a court-martial may direct.
Sec. 26.05.870. Wrongful use or possession of controlled substances.
(a) A member of the militia who wrongfully uses, possesses, manufactures, distributes, or imports a controlled substance into the customs territory of the United States, exports from the United States in violation of the laws of the United States or the state, or who wrongfully introduces a controlled substance into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces of the United States or the military forces of a state may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the charge is for wrongful use or possession, or by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the charge is for manufacturing, distributing, or importing.
(b) A court-martial may not impose a sentence of confinement under this section if the charge is for use or possession of marijuana or any marijuana derivative or compound.
(c) [Repealed, § 41 ch 85 SLA 2018.]
Sec. 26.05.875. Malingering.
A member of the militia who, for the purpose of avoiding work, duty, or service, (1) feigns illness, physical disablement, mental lapse, or derangement, or (2) intentionally inflicts self-injury may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.880. Riot or breach of peace.
A member of the militia who intentionally causes or wilfully participates in a riot or breach of the peace may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.885. Provoking speeches or gestures.
(a) A member of the militia who uses provoking or reproachful words or gestures toward another member of the militia may be punished as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement or a discharge under this section.
Sec. 26.05.890. Sexual assault.
(a) A member of the militia who commits any of the following acts is guilty of sexual assault and, except as provided under (f) of this section, shall be punished by separation with characterization dishonorable discharge and may, in addition to separation, be punished by up to 10 years of confinement and by such other punishment as a court-martial may direct:
(1) a sexual act on another person by
(A) threatening or placing another person in fear;
(B) causing bodily harm to another person;
(C) making a fraudulent representation that the sexual act serves a professional purpose;
(D) inducing a belief by any artifice, pretense, or concealment that the person is another person;
(2) a sexual act on another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring;
(3) a sexual act on another person when the other person is incapable of consenting to the sexual act because of
(A) impairment by a drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person;
(B) a mental disease or defect or physical disability, and that condition is known or reasonably should be known by the person.
(b) A member of the militia who commits or causes sexual contact on or by another person, and in doing so would have violated (a) of this section had the sexual contact been a sexual act, is guilty of abusive sexual contact and may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) In a prosecution under this section, in proving that a person made a threat, it is not necessary to prove that the person actually intended to carry out the threat or had the ability to carry out the threat.
(d) An accused may raise any applicable defenses available under this chapter or the Rules for Courts-Martial (Manual for Courts-Martial, United States, as amended). Marriage is not a defense for any conduct at issue in a prosecution under this section.
(e) In a prosecution under this section where consent is at issue,
(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 the use of force, threat of force, or placing another person in fear may not constitute consent; a current or previous dating, social, or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue may not constitute consent;
(2) a sleeping, unconscious, or incompetent person cannot consent; a person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious; a person cannot consent while under threat or fear or under the circumstances described in (a)(1)(C) or (D) of this section;
(3) lack of consent may be inferred based on the circumstances of the offense; the surrounding circumstances shall be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person's actions.
(f) The convening authority of the court-martial may reduce, commute, or suspend a sentence of separation with characterization dishonorable discharge imposed by a court-martial under (a) of this section to a sentence of separation with characterization bad-conduct discharge if, after sentencing and before the entry of judgment, the accused provides substantial assistance with the investigation or prosecution of another person.
(g) When a person is convicted of an offense under this section that requires the person to register as a sex offender under
AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under
AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under
AS 12.63.
(h) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “bodily harm” means any offensive touching of another person, however slight, including any nonconsensual sexual act or nonconsensual sexual contact;
(2) “consent” means a freely given agreement to the conduct at issue by a competent person;
(3) “force” means the use of a weapon, the use of physical strength or violence sufficient to overcome, restrain, or injure a person, or inflicting physical harm sufficient to coerce or compel submission by the victim;
(4) “grievous bodily harm” means serious bodily injury, including fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries; grievous bodily harm does not include minor injuries such as a black eye or a bloody nose;
(5) “sexual act” means
(A) contact between the penis and the vulva, anus, or mouth; in this subparagraph, contact involving the penis occurs upon penetration, however slight;
(B) the penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade a person or to arouse or gratify the sexual desire of a person;
(6) “sexual contact” means
(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of a person, with an intent to abuse, humiliate, or degrade a person;
(B) touching, or causing another person to touch, either directly or through the clothing, a body part of a person, with an intent to arouse or gratify the sexual desire of a person; touching may be accomplished by any part of the body;
(7) “threatening or placing another person in fear” means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.
Sec. 26.05.893. Prohibited sexual activities with military recruit or trainee by person in position of special trust.
(a) A member of the militia who (1) is an officer, a noncommissioned officer, or a petty officer, (2) is in a training leadership position with respect to a specially protected junior member of the armed forces of the United States or of the militia of the state, and (3) engages in prohibited sexual activity with the specially protected junior member of the armed forces of the United States or of the militia of the state may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who is a military recruiter and engages in prohibited sexual activity with (1) an applicant for military service or (2) a specially protected junior member of the armed forces of the United States or of the militia of the state who is enlisted under a delayed entry program may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) Consent is not a defense in a prosecution under this section.
(d) When a person is convicted of an offense under this section that requires the person to register as a sex offender under
AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under
AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under
AS 12.63.
Sec. 26.05.895. Stalking.
(a) A member of the militia is guilty of stalking and may be punished by up to three years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the member
(1) wrongfully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to the person or a member of the person's immediate family;
(2) has knowledge, or should have knowledge, that the specific person will be placed in reasonable fear of death or bodily harm, including sexual assault, to the person or a member of the person's immediate family;
(3) induces in a specific person reasonable fear of death or bodily harm, including sexual assault, to the person or to a member of the person's immediate family.
(b) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “course of conduct” means a repeated maintenance of visual or physical proximity to a specific person or a repeated conveyance of verbal threats, written threats, or threats implied by conduct, or a combination of those threats, directed at or toward a specific person;
(2) “immediate family” means a spouse, parent, child, or sibling of the person, or any other family member, relative, or intimate partner of the person who regularly resides in the household of the person or who, within the six months preceding the commencement of the course of conduct, regularly resided in the household of the person;
(3) “repeated,” with respect to conduct, means two or more occasions of that conduct.
Sec. 26.05.897. Assault.
(a) A member of the militia commits the offense of assault if the person attempts or offers to do bodily harm to another person using unlawful force or violence, whether or not the attempt or offer is consummated. A person who commits assault may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia commits the offense of aggravated assault if the person (1) uses a dangerous weapon or other means or force likely to produce death or grievous bodily harm to commit the offense described in (a) of this section or (2) commits the offense described in (a) of this section and intentionally inflicts grievous bodily harm, with or without a weapon, on another person. A person who commits aggravated assault may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.900. Other sexual misconduct; indecent viewing, visual recording, or broadcasting.
(a) A member of the militia who knowingly commits any of the following acts without legal justification or lawful authorization is guilty of an offense under this section and may be punished by up to seven years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct:
(1) knowingly and wrongfully views the private area of another person, without the other person's consent and under circumstances in which the other person has a reasonable expectation of privacy;
(2) knowingly and wrongfully photographs, videotapes, films, or records, by any means, the private area of another person without the other person's consent and under circumstances in which the other person has a reasonable expectation of privacy;
(3) knowingly broadcasts a recording of another person's private area that the person knows or reasonably should know was made or broadcast
(A) without the other person's consent; and
(B) under circumstances in which the other person had a reasonable expectation of privacy;
(4) knowingly distributes a recording of another person's private area that the person knows or reasonably should know was made or distributed
(A) without the other person's consent; and
(B) under circumstances in which the other person had a reasonable expectation of privacy.
(b) A member of the militia who compels another person to engage in an act of prostitution with another person is guilty of forcible pandering and may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who intentionally exposes, in an indecent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(d) When a person is convicted of an offense under this section that requires the offender to register as a sex offender under
AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under
AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under
AS 12.63.
(e) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “act of prostitution” means a sexual act or sexual contact as defined in
AS 26.05.890 because of which anything of value is given to or received by another person;
(2) “broadcast” means electronically transmitting a visual image with the intent that it be viewed by a person or persons;
(3) “consent” has the meaning given in
AS 26.05.890(h);
(4) “distribute” means delivering to the actual or constructive possession of another, including transmission by electronic means;
(5) “indecent manner” means conduct that amounts to a form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety and that tends to excite sexual desire or deprave morals with respect to sexual relations;
(6) “private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple;
(7) “reasonable expectation of privacy” means circumstances in which a reasonable person would believe that the person could disrobe in privacy without being concerned that an image of a private area of the person was being captured or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public;
(8) “recording” means a still or moving visual image captured or recorded by any means.
Sec. 26.05.905. Larceny and wrongful appropriation.
(a) A member of the militia who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or another person any money, personal property, or article of value with intent permanently to deprive or defraud another person of the use and benefit of the property or to appropriate it for the person's own use or the use of a person other than the owner steals that property and is guilty of larceny and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or another person any money, personal property, or article of value with intent temporarily to deprive or defraud another person of the use and benefit of the property or to appropriate it for the person's own use or the use of a person other than the owner is guilty of wrongful appropriation and may be punished by up to six months of confinement, by separation with characterization up to a bad conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.910. Forgery.
A member of the militia who, with intent to defraud, (1) falsely makes or alters a signature to or a part of any writing that would, if genuine, apparently impose a legal liability on another person or change the legal right or liability of the person to their prejudice, or (2) utters, offers, issues, or transfers that writing, which the person knows to be falsely made or altered, is guilty of forgery and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.913. Public records offenses.
A member of the militia who (1) wilfully and unlawfully alters, conceals, removes, mutilates, obliterates, or destroys a public record or (2) takes a public record with the intent to alter, conceal, remove, mutilate, obliterate, or destroy the public record may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.915. Making, drawing, or uttering check, draft, or order without sufficient funds.
A member of the militia who makes, draws, utters, or delivers a check, draft, or order for the payment of money on a bank or other depository, knowing at the time that the maker or drawer has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of that check, draft, or order in full on its presentment, with intent to defraud for the procurement of any article or thing of value or with intent to deceive for the payment of a past due obligation or for another purpose, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct. The making, drawing, uttering, or delivering by a maker or drawer of a check, draft, or order, payment of which is refused by the drawee because of insufficient funds of the maker or drawer in the drawee's possession or control, is prima facie evidence of the person's intent to defraud or deceive and of the knowledge of insufficient funds in, or credit with, that bank or other depository, unless the maker or drawer pays the holder the amount due within five days after receiving notice, orally or in writing, that the check, draft, or order was not paid on presentment. In this section, “credit” means an arrangement or understanding, express or implied, with the bank or other depository for the payment of that check, draft, or order.
Sec. 26.05.920. Perjury.
A member of the militia who, in a judicial proceeding or in a course of justice, under lawful oath or in another form allowed by law to be substituted for an oath, wilfully and corruptly gives false testimony material to the issue or matter of inquiry, or who, in a declaration, certificate, verification, or statement under penalty of perjury, subscribes a false statement material to the issue or matter of inquiry is guilty of perjury and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.925. Fraud against the government.
(a) A member of the militia is guilty of fraud against the government if the member,
(1) knowing it to be false or fraudulent,
(A) makes a claim against the United States, the state, or an officer of the United States or the state; or
(B) presents to a person in the civil or military service of the United States, the state, or an officer of the United States or the state, for approval or payment, a claim against the United States, the state, or an officer of the United States or the state;
(2) for the purpose of obtaining the approval, allowance, or payment of a claim against the United States, the state, or an officer of the United States or the state,
(A) makes or uses a writing or other paper knowing it to contain a false or fraudulent statement;
(B) makes an oath, affirmation or certification to a fact, writing, or other paper knowing the oath, affirmation, or certification to be false; or
(C) forges or counterfeits a signature on a writing or other paper or uses the signature, knowing it to be forged or counterfeited;
(3) having charge, possession, custody, or control of money or other property of the United States or the state, that is furnished or intended for the armed forces of the United States or the militia of the state, knowingly delivers to a person having authority to receive it, any amount of the money or other property less than that for which the member receives a certificate or receipt; or
(4) being authorized to make or deliver any paper certifying the receipt of property of the United States or the state, that is furnished or intended for the armed forces of the United States or the militia of the state, makes or delivers to a person the writing without having full knowledge of the truth of the statements contained in the writing and with intent to defraud the United States or the state.
(b) A person found guilty of fraud against the government may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.930. Conduct unbecoming an officer.
(a) A commissioned officer, warrant officer, cadet, candidate, or midshipman of the militia who is convicted of conduct unbecoming an officer may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement under this section.
Sec. 26.05.935. General article.
(a) Although not specifically mentioned in this chapter, all disorders and acts that prejudice good order and discipline in the militia of the state and all conduct of a nature to bring discredit on the militia of the state shall be considered by a court-martial and punished as a court-martial may direct.
(b) A member of the militia who commits an enumerated offense punishable under Article 134, 10 U.S.C. 934 (Uniform Code of Military Justice), except for those enumerated offenses relating to wrongful cohabitation, may, upon conviction, be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(c) A court-martial may not impose a sentence of confinement under (a) or (b) of this section.
(d) When a person is convicted of an enumerated offense under (b) of this section that requires the offender to register as a sex offender under
AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under
AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under
AS 12.63.
Sec. 26.05.940. Offenses concerning government computers.
(a) A member of the militia who (1) knowingly accesses a government computer with an unauthorized purpose, (2) by accessing the government computer obtains classified information, and (3) with reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation, intentionally communicates, delivers, or transmits the information, or causes the information to be communicated, delivered, or transmitted, to any person who is not entitled to receive the information may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who intentionally accesses a government computer with an unauthorized purpose and by accessing the government computer obtains classified or other protected information from the government computer may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who knowingly causes the transmission of a program, information, code, or command and, as a result of that conduct, intentionally and without authorization causes damage to a government computer may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.945. Breach of medical quarantine.
A member of the militia who is ordered into medical quarantine by a person authorized to issue the quarantine order and who, with knowledge of the quarantine order and the limits imposed under the quarantine order, goes beyond the limits imposed under the quarantine order before the person is released from quarantine by proper authority may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Article 3. General Provisions.
Sec. 26.05.990. Definitions.
In this chapter, unless the context otherwise requires,
(1) “accuser” means a person who signs and swears to charges, a person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused;
(2) “arrest” means the restraint of a person by an order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits;
(3) “cadet,” “candidate,” or “midshipman” means a person who is enrolled in or attending a state military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in the militia of the state;
(4) “classified information” means
(A) information or material that has been determined by an official of the United States or any state under law, an executive order, or regulation to require protection against unauthorized disclosure for reasons of national or state security; and
(B) restricted data, as defined in 42 U.S.C. 2014(y) (Atomic Energy Act of 1954);
(5) “code of military justice” means the provisions of this chapter and the regulations adopted by the adjutant general to implement this chapter;
(6) “commanding officer” or “commander” includes only commissioned officers of the militia of the state and includes officers in charge only when administering a nonjudicial punishment under the code of military justice;
(7) “confinement” means the physical restraint of a person;
(8) “controlled substance” means
(A) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana;
(B) a compound or derivative of a substance specified in (A) of this paragraph;
(C) a substance not specified in (A) or (B) of this paragraph that is listed on a schedule of controlled substances prescribed by the President of the United States for the purposes of the armed forces of the United States under 10 U.S.C. 801 — 946 (Uniform Code of Military Justice);
(D) a substance not specified in (A) or (B) of this paragraph or on a list prescribed by the President under (C) of this paragraph that is listed in 21 U.S.C. 812, schedules I through V;
(E) an illicit synthetic drug identified in
AS 17.21.010;
(9) “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 to the convening authority;
(10) “day” means calendar day and is not synonymous with the term “unit training assembly”;
(11) “department” means the Department of Military and Veterans' Affairs;
(12) “enlisted member” means a person in an enlisted grade;
(13) “military court” means a court-martial;
(14) “military judge” means an official of a general or special court-martial described under
AS 26.05.470;
(15) “militia” or “militia of the state” means the Alaska National Guard, the Alaska Naval Militia, and the Alaska State Defense Force;
(16) “national or state security” means the national defense and foreign relations of the United States;
(17) “officer” means a commissioned or warrant officer;
(18) “officer in charge” means a member of the naval militia, United States Navy, United States Marine Corps, or United States Coast Guard designated by the appropriate authority;
(19) “record,” when used in connection with the proceedings of a court-martial, means
(A) an official written transcript, written summary, or other writing relating to the proceedings; or
(B) an official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced;
(20) “reviewing authority” means the Military Appeals Commission and the Alaska supreme court;
(21) “senior force judge advocate” means the senior judge advocate of the commander of the same force of the militia of the state as the accused and who is that commander's chief legal advisor;
(22) “unit” means a regularly organized body of the militia of the state not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.