398...398.202 Procedural regulations 398.204 Unlawfully influencing action of court 398.206 Duties...

Chapter 3982011 EDITION

Military Justice

GENERAL PROVISIONS398.002 Definitions for this chapter and ORS

396.120, 396.145, 399.205 and 399.515398.004 Persons subject to this chapter398.006 Jurisdiction to try certain personnel398.008 Dismissal of commissioned officer398.010 Territorial applicability of this chapter398.012 Judge advocates; legal assistants398.014 Presentment of Class A felony charges to

civilian authority

APPREHENSION AND RESTRAINT398.052 “Apprehension” defined; quelling of disor-

ders398.054 Apprehension of deserters398.056 Imposition of restraint; “arrest” and

“confinement” defined398.058 Restraint of priority prisoners; notice of

charges; speedy disposition; conditionalrelease

398.060 Place of confinement398.062 Receiving prisoners; report to command-

ing officer398.065 Punishment prohibited before trial398.066 Delivery of offenders to civil authorities;

redelivery to military authority398.068 Confinement pending trial for failure to

appear

NONJUDICIAL PUNISHMENT398.083 Imposition and enforcement of discipli-

nary punishment without court-martial

COURTS-MARTIAL JURISDICTION398.102 Courts-martial of organized militia not in

federal service; composition398.104 Jurisdiction of courts-martial of each

component398.106 Jurisdiction of general courts-martial398.108 Jurisdiction of special courts-martial398.110 Jurisdiction of summary courts-martial398.112 Sentences to be approved by Governor or

Adjutant General398.114 When complete record of proceedings and

testimony required398.116 Authorized sentence of general or special

court-martial after declaration of warprior to jurisdiction of Uniform Code ofMilitary Justice

398.118 Commutations and pardons granted byGovernor; remittance of forfeitures andfines

398.120 Application for commutation or pardon

APPOINTMENT AND COMPOSITION OFCOURTS-MARTIAL

398.126 Convening general courts-martial398.128 Convening special courts-martial

398.130 Convening summary courts-martial398.132 Who may serve on courts-martial398.135 Detail of military judge398.136 Detail of trial counsel and defense counsel398.138 Detail or employment of reporters and

interpreters398.140 Absent and additional members; effect of

absences on trial

PRETRIAL PROCEDURE398.162 Charges and specifications398.164 Compulsory self-incrimination and imma-

terial and degrading evidence prohibited398.166 Investigation398.168 Forwarding of charges398.170 Advice of State Judge Advocate; reference

for trial; formal corrections398.172 Service of charges

TRIAL PROCEDURE398.202 Procedural regulations398.204 Unlawfully influencing action of court398.206 Duties of trial counsel and defense coun-

sel398.209 Court sessions398.210 Continuances398.212 Challenges398.214 Oaths398.216 Statute of limitation398.218 Former jeopardy398.220 Pleas of accused398.222 Opportunity to obtain witnesses and evi-

dence398.224 Refusal to appear or testify398.226 Contempt398.228 Depositions398.230 Admissibility of records of courts of in-

quiry398.232 Voting and rulings398.234 Number of votes required398.236 Court to announce action398.238 Record of trial

SENTENCES398.252 Cruel and unusual punishments prohibited398.254 Punishments limited398.256 Effective date of sentence398.258 Execution of confinement

REVIEW OF COURTS-MARTIAL398.272 Approval and execution or suspension of

sentence398.274 Initial review and action on trial record398.276 Reconsideration and revision of court’s

ruling

Title 32 Page 1 (2011 Edition)

MILITARY AFFAIRS; EMERGENCY SERVICES

398.278 Rehearings398.280 Approval by convening authority398.282 Review of records; disposition398.284 Error of law; lesser included offense398.286 Review counsel398.288 Vacation of suspension398.290 Petition for new trial398.292 Remission and suspension398.294 Restoration398.296 Finality of proceedings, findings and sen-

tences

PUNITIVE PROVISIONS398.302 When persons may be tried or punished398.304 Principals398.306 Accessory after fact398.308 Conviction of lesser included offense398.310 Attempts398.312 Conspiracy398.314 Solicitation398.316 Fraudulent enlistment, appointment or

separation398.318 Unlawful enlistment, appointment or sep-

aration398.320 Desertion398.322 Absence without leave398.324 Failure to make required move398.326 Contempt toward officials398.328 Disrespect toward superior commissioned

officer398.330 Assaulting or willfully disobeying superior

commissioned officer398.332 Insubordinate conduct toward warrant

officer or noncommissioned officer398.334 Failure to obey order or regulation398.336 Cruelty and maltreatment398.338 Mutiny or sedition398.340 Resistance, breach of arrest and escape398.342 Releasing prisoner without proper au-

thority398.344 Unlawful detention398.346 Noncompliance with procedural rules398.348 Misbehavior before enemy398.350 Subordinate compelling surrender

398.352 Improper use of countersign398.354 Forcing safeguard398.356 Captured or abandoned property398.358 Aiding enemy398.360 Misconduct as prisoner398.362 False official statements398.366 Loss, damage, destruction or wrongful

disposition of military property398.368 Waste, spoilage or destruction of property

other than military398.370 Improper hazarding of vessel398.372 Driving while drunk398.374 Drunk on duty398.375 Sentinel or lookout drunk or sleeping on

post; leaving before relief398.378 Malingering398.380 Riot or breach of peace398.384 Stealing goods398.386 Perjury398.388 Frauds against government398.391 Controlled substances398.393 Dueling; failure to report dueling398.394 Provoking or reproachful words or ges-

tures398.395 Insufficient funds or credit398.397 Unlawful force or violence398.399 Conduct unbecoming officer398.400 Conduct to prejudice of good order and

discipline; limits to jurisdiction of courts-martial

MISCELLANEOUS PROVISIONS398.402 Courts of inquiry398.404 Redress of injuries to property398.406 Execution of process and sentence398.408 Process of military courts398.410 Payment of fines and disposition thereof398.412 Immunity for action of military courts398.414 Presumption of jurisdiction398.416 Delegation of authority by Governor398.418 Payment of expenses398.420 Armed Forces Court of Appeals for Ore-

gon


MILITARY JUSTICE 398.006

GENERAL PROVISIONS398.002 Definitions for this chapter

and ORS 396.120, 396.145, 399.205 and399.515. As used in this chapter and ORS396.120, 396.145, 399.205 and 399.515, unlessthe context requires otherwise:

(1) “Accuser” means a person who signsand swears to charges, any person who di-rects that charges nominally be signed andsworn to by another, or any other personwho has an interest other than an officialinterest in the prosecution of the accused.

(2) “Active state duty” means full-timeduty in the active military service of thestate under an order of the Governor issuedunder authority vested in the Governor bylaw, and includes travel to and from suchduty. The term “active state duty” also in-cludes all Oregon National Guard personnelserving on active duty under Title 32 U.S.C.502(f).

(3) “Commanding officer” includes onlycommissioned officers in positions of com-mand.

(4) “Commissioned officer” includes acommissioned warrant officer.

(5) “Component” includes the Army Na-tional Guard, the Air National Guard andthe Oregon State Defense Force.

(6) “Confining authority” means theGovernor, a military court or a conveningauthority or commanding officer designatedby the Adjutant General.

(7) “Convening authority” means a per-son authorized under this chapter to convenea court-martial.

(8) “Duty status other than active stateduty” means any drill periods and such othertraining or service, other than active stateduty, as may be required under state or fed-eral laws, regulations or orders, and travelto and from such duty.

(9) “Enlisted member” means a person inan enlisted grade.

(10) “Grade” means a step or degree, ina graduated scale of office or military rank,that is established and designated as a gradeby law or regulation.

(11) “Judge advocate” means the StateJudge Advocate or an Assistant State JudgeAdvocate.

(12) “Military” refers to any or all of thearmed forces.

(13) “Military court” means a court-martial, a court of inquiry or a provost court.

(14) “Military judge” means an official ofa general or special court-martial detailed inaccordance with ORS 398.135.

(15) “Officer” means commissioned orwarrant officer.

(16) “Organized militia” means the or-ganized militia described in ORS 396.105.

(17) “Rank” means the order of preced-ence among members of the armed forces.

(18) “Record,” when used in connectionwith the proceedings of a court-martial,means:

(a) An official written transcript, writtensummary or other writing relating to theproceedings; or

(b) An official audiotape, videotape orsimilar material from which sound or soundand visual images depicting the proceedingsmay be reproduced.

(19) “State Judge Advocate” means thecommissioned officer responsible for super-vising the administration of military justiceand general military legal matters in the or-ganized militia.

(20) “Superior commissioned officer”means a commissioned officer superior inrank or command.

(21) “Uniform Code of Military Justice”means chapter 47 (commencing with section801) of Title 10 of the United States Codeand regulations adopted thereunder, togetherwith the Manual for Courts-Martial, UnitedStates, 1984 (Executive Order 12473 of July13, 1984, as amended). [1961 c.454 §78; 1975 c.719§1; 1985 c.682 §14; 1989 c.361 §5; 2005 c.512 §5]

398.004 Persons subject to this chap-ter. The following persons who are not infederal service are subject to this chapter:

(1) Members of the organized militia.(2) All other persons lawfully ordered to

duty in or with the organized militia, fromthe dates they are required by the terms ofthe order or other directive to obey thesame. [1961 c.454 §79]

398.006 Jurisdiction to try certainpersonnel. (1) Each person discharged fromthe organized militia who is later chargedwith having fraudulently obtained the dis-charge of the person is, subject to ORS398.216, subject to trial by court-martial onthat charge and is after apprehension subjectto this chapter while in the custody of themilitary for that trial. Upon conviction ofthat charge the person is subject to trial bycourt-martial for all offenses under thischapter committed before the fraudulent dis-charge.

(2) No person who has deserted from theorganized militia may be relieved fromamenability to the jurisdiction of this chap-ter by virtue of a separation from any laterperiod of service. [1961 c.454 §80]


398.008 MILITARY AFFAIRS; EMERGENCY SERVICES

398.008 Dismissal of commissioned of-ficer. (1) If any commissioned officer dis-missed by order of the Governor makes awritten application for trial by court-martial,setting forth under oath that the officer hasbeen wrongfully dismissed, the Governor orthe Adjutant General, as soon as practicableshall convene a general court-martial to trythat officer on the charges on which the of-ficer was dismissed. A court-martial so con-vened has jurisdiction to try the dismissedofficer on those charges, and the officer shallbe considered to have waived the right toplead any statute of limitations applicable toany offense with which the officer ischarged. The court-martial may, as part of itssentence, adjudge the affirmance of the dis-missal; but if the court-martial acquits theaccused or if the sentence adjudged, asfinally approved or affirmed, does not includedismissal, the Adjutant General shall substi-tute for the dismissal ordered by the Gover-nor a form of discharge authorized foradministrative issue.

(2) If the Governor or the Adjutant Gen-eral fails to convene a general court-martialwithin six months from the presentation ofan application for trial under this chapter,the Adjutant General shall substitute for thedismissal ordered by the Governor a form ofdischarge authorized for administrative issue.

(3) If a discharge is substituted for a dis-missal under this chapter, the Governoralone may reappoint the officer to such com-missioned grade and with such rank as, inthe opinion of the Governor, that former of-ficer would have attained had the officer notbeen dismissed. The reappointment of such aformer officer may be made only if a vacancyis available under applicable tables of organ-ization. All time between the dismissal andthe reappointment shall be considered as ac-tual service for all purposes.

(4) If an officer is discharged from theorganized militia by administrative action orby board proceedings under law, or isdropped from the rolls by order of the Gov-ernor, the officer has no right to trial underthis section. [1961 c.454 §81; 1975 c.719 §2; 2005 c.512§6]

398.010 Territorial applicability of thischapter. (1) This chapter applies throughoutthe state. It also applies to all persons oth-erwise subject to this chapter while they areserving outside the state, and while they aregoing to and returning from such serviceoutside the state, in the same manner and tothe same extent as if they were serving in-side the state.

(2) Courts-martial and courts of inquirymay be convened and held in units of theorganized militia while those units are serv-ing outside the state with the same jurisdic-

tion and powers as to persons subject to thischapter as if the proceedings were held in-side the state; and offenses committed out-side the state may be tried and punishedeither inside or outside the state. [1961 c.454§82]

398.012 Judge advocates; legal assis-tants. (1) The Governor, on the recommen-dation of the Adjutant General, shall appointan officer of the organized militia as StateJudge Advocate. To be eligible for appoint-ment as State Judge Advocate, an officermust:

(a) Be a member in good standing of theOregon State Bar;

(b) Have been a member of the OregonState Bar for at least five years; and

(c) Meet the qualifications for a judgeadvocate under the Uniform Code of MilitaryJustice.

(2) The Adjutant General may appoint anofficer of the organized militia as an Assis-tant State Judge Advocate. The AdjutantGeneral may appoint as many Assistant StateJudge Advocates as the Adjutant Generaldeems necessary. To be eligible for appoint-ment as an Assistant State Judge Advocate,an officer must:

(a) Be a member in good standing of theOregon State Bar; and

(b) Meet the qualifications for a judgeadvocate under the Uniform Code of MilitaryJustice.

(3)(a) The Adjutant General may appointtemporary Assistant State Judge Advocateswho are officers of the organized militia. Anindividual appointed as a temporary Assis-tant State Judge Advocate has 12 monthsfrom the date of appointment to become amember in good standing of the Oregon StateBar and meet the qualifications for a judgeadvocate under the Uniform Code of MilitaryJustice.

(b) The legal services performed by atemporary Assistant State Judge Advocateare limited to those legal services that maybe performed by legal assistants consistentwith ORS 9.160.

(c) A temporary Assistant State JudgeAdvocate who has met the requirements un-der this subsection is eligible for appoint-ment as an Assistant State Judge Advocate.

(d) The Adjutant General may extend, foran additional 12 months, the time duringwhich a temporary Assistant State JudgeAdvocate must meet the qualifications de-scribed in paragraph (a) of this subsection.

(4) The Adjutant General may appointState Judge Advocate Legal Assistants for aperiod not to exceed 12 months. An individ-ual appointed as a State Judge Advocate Le-



gal Assistant shall be an officer of theOregon State Defense Force and shall be le-gally trained but is not required to be ad-mitted to the practice of law by the SupremeCourt of this state. The legal services per-formed by a State Judge Advocate Legal As-sistant are limited to those legal servicesthat may be performed by legal assistantsconsistent with ORS 9.160.

(5) The State Judge Advocate, the SeniorForce Judge Advocate, as defined in the Or-egon Code of Military Justice (2008), or theirassistants shall make frequent inspections inthe field for supervision of the administrationof military justice and general military legalmatters.

(6)(a) Convening authorities shall at alltimes communicate directly with their judgeadvocate in matters relating to the adminis-tration of military justice and general mili-tary legal matters.

(b) The judge advocate of any commandmay communicate directly with the judgeadvocate of a superior or subordinate com-mand, or with the State Judge Advocate orthe Senior Force Judge Advocate, as definedin the Oregon Code of Military Justice(2008).

(7) A person who has acted as member,military judge, trial counsel, assistant trialcounsel, defense counsel, assistant defensecounsel or investigating officer, or who hasbeen a witness for either the prosecution ordefense in any case, may not later act asjudge advocate to any reviewing authorityupon the same case.

(8) A judicial officer, as defined by ORS1.210, is not prohibited, by reason of holdingthat office, from:

(a) Performing all acts necessary or in-cumbent to the authorized exercise of dutiesas a judge advocate or as a member of theMilitary Council.

(b) Being assigned as a judge advocate bythe Adjutant General as appointed by theGovernor as Commander in Chief under theOregon Constitution. [1961 c.454 §83; 1975 c.719§3; 1993 c.483 §1; 2005 c.512 §7; 2009 c.345 §1]

398.014 Presentment of Class A felonycharges to civilian authority. (1) A chargeagainst a person subject to this chapter foran offense that is classified as a Class A fel-ony under the Oregon Criminal Code shallfirst be presented by the convening authorityto a prosecuting civilian authority with ju-risdiction over the offense for possible prose-cution.

(2) If the prosecuting civilian authoritydeclines to prosecute or fails to respondwithin 90 days from presentation of thecharge, the charge may then be prosecutedas provided in this chapter. [2005 c.512 §33]

APPREHENSION AND RESTRAINT398.052 “Apprehension” defined;

quelling of disorders. (1) Apprehension isthe taking of a person into custody.

(2) Any person authorized by this chapterand ORS chapters 396 and 399, or by militarydepartment regulations issued pursuantthereto, to apprehend persons subject to thischapter, any marshal of a court-martial ap-pointed pursuant to the provisions of thischapter and any peace officer authorized todo so by law may do so upon reasonable be-lief that an offense has been committed andthat the person apprehended committed it.

(3) Commissioned officers, warrant offi-cers and noncommissioned officers have au-thority to quell quarrels, frays and disordersamong persons subject to this chapter and toapprehend persons subject to this chapterwho take part therein. [1961 c.454 §84]

398.054 Apprehension of deserters.Any civil officer having authority to appre-hend offenders under the laws of the UnitedStates or of a state, territory, commonwealthor possession, or the District of Columbia,may summarily apprehend a deserter fromthe organized militia and deliver the deserterinto the custody of the organized militia. Ifan offender is apprehended outside the state,the return of the offender to the area mustbe in accordance with normal extraditionprocedures or reciprocal agreement. [1961 c.454§85]

398.056 Imposition of restraint; “ar-rest” and “confinement” defined. (1) Ar-rest is the restraint of a person by an order,not imposed as a punishment for an offense,directing the person to remain within certainspecified limits. Confinement is the physicalrestraint of a person.

(2) An enlisted member may be orderedinto arrest or confinement by any commis-sioned officer by an oral or written order,delivered in person or through other personssubject to this chapter or through any personauthorized by this chapter to apprehend per-sons. A commanding officer may authorizewarrant officers or noncommissioned officersto order enlisted members of the commandof the officer or subject to the authority ofthe officer into arrest or confinement.

(3) A commissioned officer or warrantofficer may be ordered apprehended or intoarrest or confinement only by a commandingofficer to whose authority the officer is sub-ject, by an order, oral or written, deliveredin person or by another commissioned offi-cer. The authority to order such persons ap-prehended or into arrest or confinement maynot be delegated.



(4) No person may be ordered appre-hended or into arrest or confinement exceptfor probable cause.

(5) Nothing in this section shall be con-strued to limit the authority of persons au-thorized to apprehend offenders to secure thecustody of an alleged offender until properauthority may be notified. [1961 c.454 §86]

398.058 Restraint of priority prisoners;notice of charges; speedy disposition;conditional release. (1)(a) Except as pro-vided in paragraph (b) of this subsection, anyperson subject to this chapter charged withan offense under this chapter may be or-dered, as a priority prisoner, into arrest orconfinement, as circumstances may require.

(b) A person subject to this chaptercharged only with a minor offense normallytried by a summary court-martial or subjectto punishment under ORS 398.083 may notordinarily be placed in confinement.

(c) The offense described under ORS398.322 is not a minor offense for the pur-poses of this subsection.

(2) When any person subject to thischapter is placed in arrest or confinementprior to trial, immediate steps shall be takento inform the person of the specific wrong ofwhich the person is accused and to try theperson or to dismiss the charges and releasethe person.

(3) When a person subject to this chapteris placed in confinement prior to summarycourt-martial or disposition under ORS398.083, the person shall be conditionally re-leased pending disposition of the charges.

(4) A person described in subsection (3)of this section may be reconfined if the per-son violates the conditional release. The per-son violates the conditional release if theperson fails to attend drill periods, periodsof active duty training, annual training,other periods determined by the confiningauthority or hearings related to the pendingcharges or other conditions imposed by theconfining authority.

(5) As used in this section, “priorityprisoner” means a person subject to thischapter who:

(a) Has been ordered into confinement bya confining authority;

(b) Is received by a keeper, officer,warden or other person in charge of thecounty jail, penitentiary, prison or other fa-cility in which the person has been orderedconfined; and

(c) May be released only upon order ofthe confining authority. [1961 c.454 §87; 1975 c.719§4; 2005 c.512 §8]

398.060 Place of confinement. (1) Con-finement other than in an authorized mili-tary confinement facility, whether before,during or after trial by a military court, shallbe executed in county jails, penitentiaries orprisons designated by the Governor or bysuch persons as the Governor may authorizeto act.

(2) If no designation is made under sub-section (1) of this section, the person shallbe confined in a county jail.

(3) Confinement under this section shallbe without requirement of payment of anyfee or charge for confining the person. [1961c.454 §88; 2005 c.512 §9]

398.062 Receiving prisoners; report tocommanding officer. (1) A warden, keeperor officer of a county jail, penitentiary orprison designated under ORS 398.060, maynot refuse to receive or keep any prisonercommitted to the charge of the person, whenthe committing person furnishes a statement,signed by the committing person, of the of-fense charged against the prisoner.

(2) Every warden, keeper or officer of acounty jail, penitentiary or prison designatedunder ORS 398.060, to whose charge a pris-oner is committed shall, within 24 hours af-ter that commitment, report to thecommanding officer of the prisoner the nameof the prisoner, the offense charged againstthe prisoner, and the name of the person whoordered or authorized the commitment. [1961c.454 §89; 2005 c.512 §36]

398.064 [1961 c.454 §90; repealed by 1985 c.682 §53]

398.065 Punishment prohibited beforetrial. A person, while being held for trial,may not be subjected to punishment or pen-alty other than arrest or confinement uponthe charges pending against the person, norshall the arrest or confinement imposed beany more rigorous than the circumstancesrequired to insure the person’s presence, butthe person may be subjected to minor pun-ishment during that period for infractions ofdiscipline. [1985 c.682 §2]

398.066 Delivery of offenders to civilauthorities; redelivery to military au-thority. (1) Under such military departmentregulations as may be prescribed under thischapter and ORS chapters 396 and 399, aperson on active state duty subject to thischapter who is accused of an offense againstcivil authority may be delivered, upon re-quest, to the civil authority for trial.

(2) When delivery under this section ismade to any civil authority of a personundergoing sentence of a court-martial, thedelivery, if followed by conviction in a civiltribunal, interrupts the execution of the sen-tence of the court-martial, and the offenderafter having answered to the civil authorities



for the offense shall, upon the request ofcompetent military authority, be returned tomilitary custody for the completion of thesentence of the offender. [1961 c.454 §91]

398.068 Confinement pending trial forfailure to appear. When an accused personshall have been arrested for failure to appearbefore a court-martial for trial, the militaryjudge, the president of a court-martial or asummary court officer to whom the chargeshave been referred for trial may issue acommitment for confinement of such personpending trial, subject to the prior approvalof the State Judge Advocate. No person shallbe kept in confinement pending trial longerthan seven days. [1985 c.682 §11]

398.082 [1961 c.454 §92; repealed by 1975 c.719 §5(398.083 enacted in lieu of 398.082)]

NONJUDICIAL PUNISHMENT398.083 Imposition and enforcement

of disciplinary punishment withoutcourt-martial. (1) Under such regulationsas may be prescribed by the Governor or theAdjutant General, limitations may be placedon the powers granted by this section withrespect to the kind and amount of punish-ment authorized, the categories of command-ing officers and warrant officers exercisingcommand authorized to exercise those pow-ers, the applicability of this section to anaccused who demands trial by court-martial,and the kinds of courts-martial to which thecase may be referred upon such a demand.However, punishment may not be imposedupon any member of the organized militiaunder this section if the member has, beforethe imposition of such punishment demandedtrial by court-martial in lieu of such punish-ment. Regulations may be prescribed by theGovernor or the Adjutant General with re-spect to the suspension of punishments au-thorized under this section. If authorized byregulations prescribed by the Governor orthe Adjutant General, the Governor, the Ad-jutant General or an officer of a generalrank in command may delegate powers underthis section to a principal assistant who is amember of the organized militia.

(2) Subject to subsection (1) of this sec-tion, any commanding officer may, in addi-tion to or in lieu of admonition or reprimand,impose one or more of the following discipli-nary punishments for minor offenses withoutthe intervention of a court-martial:

(a) Upon officers of the command:(A) Restriction to certain specified limits,

with or without suspension from duty, fornot more than 30 consecutive duty or drilldays, the punishment to be completed within90 days of the date punishment was imposed.

(B) If imposed by the Governor, the Ad-jutant General or an officer of a generalrank in command:

(i) Arrest in quarters for not more than30 consecutive duty or drill days, the pun-ishment to be completed within 90 days ofthe date punishment was imposed.

(ii) Forfeiture of not more than one-halfof one month’s active duty base pay for twomonths.

(iii) Restriction to certain specified lim-its, with or without suspension from duty, fornot more than 60 consecutive duty or drilldays, the punishment to be completed within90 days of the date punishment was imposed.

(iv) Detention of not more than one-halfof one month’s active duty base pay for threemonths.

(b) Upon other military personnel of thecommand:

(A) Forfeiture of not more than sevendays’ active duty base pay;

(B) Reduction to the next inferior paygrade, if the grade from which demoted iswithin the promotion authority of the officerimposing the reduction or any officer subor-dinate to the one who imposes the reduction;

(C) Extra duties, including fatigue orother duties, not to exceed two hours perday, including holidays, for not more than 14consecutive duty or drill days, the punish-ment to be completed within 90 days of thedate punishment was imposed;

(D) Restriction to certain specified limits,with or without suspension from duty, fornot more than 14 consecutive duty or drilldays, the punishment to be completed within90 days of the date punishment was imposed;

(E) Correctional custody for not morethan seven consecutive duty or drill days,the punishment to be completed within 90days of the date punishment was imposed;

(F) Detention of not more than 14 days’active duty base pay; or

(G) If imposed by an officer of the gradeof major or above:

(i) Forfeiture of not more than one-halfof one month’s active duty base pay for twomonths;

(ii) Reduction to the lowest or any inter-mediate pay grade, if the grade from whichdemoted is within the promotion authorityof the officer imposing the reduction or anyofficer subordinate to the one who imposesthe reduction, but an enlisted member in apay grade above E-4 may not be reducedmore than two pay grades;

(iii) Extra duties, including fatigue orother duties, not to exceed two hours perday, including holidays, for not more than 45



consecutive duty or drill days, the punish-ment to be completed within 90 days of thedate punishment was imposed;

(iv) Restriction to certain specified limits,with or without suspension from duty, fornot more than 60 consecutive duty or drilldays, the punishment to be completed within90 days of the date punishment was imposed;

(v) Correctional custody for not morethan seven consecutive duty or drill days,the punishment to be completed within 90days of the date punishment was imposed; or

(vi) Detention of not more than one-halfof one month’s active duty base pay for threemonths.

(3) No two or more of the punishmentsof arrest in quarters, extra duties, and re-striction may be combined to run consec-utively in excess of the maximum amountthat may be imposed for each. When any ofthose punishments are combined to run con-secutively, there must be an apportionment.

(4) An officer in charge may impose uponenlisted members assigned to the unit ofwhich the officer is in charge such of thepunishments authorized under subsection(2)(b)(A), (B), (C), (D), (E) and (F) of thissection as the Governor may specificallyprescribe by regulation.

(5) The officer who imposes the punish-ments authorized under subsection (2) of thissection, or a successor in command, may, atany time, suspend probationally a reductionin grade or a forfeiture imposed under sub-section (2) of this section, whether or notexecuted. In addition, such officer may, atany time, remit or mitigate any part oramount of the unexecuted punishment andmay set aside in whole or in part the pun-ishment, whether executed or unexecuted,and restore all rights, privileges and propertyaffected. The officer may also mitigate re-duction in grade to forfeiture of active dutybase pay. When mitigating an arrest inquarters to restriction or extra duties to re-striction, the mitigated punishment shall notbe for a greater period than the punishmentmitigated. When mitigating reduction ingrade to forfeiture of active duty base pay,the amount of the forfeiture shall not begreater than the amount that could havebeen imposed initially under this section bythe officer who imposed the punishment mit-igated.

(6) A person punished under this sectionwho considers the punishment unjust or dis-proportionate to the offense may, throughthe proper channel, appeal to the next supe-rior authority. The appeal shall be promptlyforwarded and decided, but the person pun-ished may in the meantime be required toundergo the punishment adjudged. The supe-

rior authority may exercise the same powerswith respect to the punishment imposed asmay be exercised under subsection (5) of thissection by the officer who imposed the pun-ishment. Before acting on an appeal from anyof the following punishments, the authoritywho is to act on the appeal shall refer thecase to a staff judge advocate or legal officerfor consideration and advice:

(a) Arrest in quarters for more thanseven days;

(b) Correctional custody for more thanseven consecutive duty or drill days;

(c) Forfeiture of more than seven days’active duty base pay;

(d) Reduction of one or more pay gradesfrom the fourth or a higher pay grade;

(e) Extra duties for more than 14 consec-utive drill or duty days;

(f) Restriction for more than 14 consec-utive drill or duty days; or

(g) Detention of more than 14 days’ ac-tive duty base pay.

(7) Except as provided in subsection (6)of this section, before acting on an appealfrom any punishment imposed under subsec-tion (2) of this section, the authority who isto act on the appeal may refer the case to astaff judge advocate or legal officer for con-sideration and advice.

(8) The imposition and enforcement ofdisciplinary punishment under this sectionfor any act or omission is not a bar to trialby court-martial or other legal proceeding fora serious crime or offense growing out of thesame act or omission, and not properly pun-ishable under this section; but the fact thata disciplinary punishment has been enforcedmay be shown by the accused upon trial, andwhen so shown shall be considered in deter-mining the measure of punishment to beadjudged in the event of a finding of guilty.

(9) Whenever a punishment of forfeitureof pay is imposed under this section, theforfeiture may apply to pay accruing on orafter the date that punishment is imposedand to any pay accrued before that date.

(10) The Governor or the Adjutant Gen-eral may, by regulation, prescribe the formof records to be kept of proceedings underthis section and may also prescribe that cer-tain categories of those proceedings shall bein writing. [1975 c.719 §6 (enacted in lieu of 398.082);1985 c.682 §15; 2005 c.512 §10]

COURTS-MARTIAL JURISDICTION398.102 Courts-martial of organized

militia not in federal service; composi-tion. (1) In the organized militia not in fed-eral service, there are general, special andsummary courts-martial constituted like sim-



ilar courts of the army and air force. Theyhave the jurisdiction and powers, except asto punishments, and shall follow the formsand procedures provided for those courts asfar as applicable, except as otherwise pro-vided in this chapter.

(2) The three kinds of courts-martialshall be constituted as follows:

(a) General courts-martial, consisting of:(A) A military judge and not less than

five members; or(B) Only a military judge, if before the

court is assembled, the accused, knowing theidentity of the military judge, and after con-sultation with defense counsel, requestsorally on the record or in writing a courtcomposed only of a military judge and themilitary judge approves.

(b) Special courts-martial, consisting of:(A) Not less than three members; or(B) A military judge and not less than

three members; or(C) Only a military judge, if one has been

detailed to the court, and the accused underthe same conditions prescribed in paragraph(a)(B) of this subsection so requests.

(c) Summary courts-martial, consisting ofone commissioned officer. [1961 c.454 §93; 1975c.719 §7; 1985 c.682 §16]

398.104 Jurisdiction of courts-martialof each component. Each component of theorganized militia has court-martial jurisdic-tion over all persons subject to this chapter.The exercise of jurisdiction by one compo-nent over personnel of another componentshall be in accordance with military depart-ment regulations prescribed by the Governorunder ORS 396.125 or by the Adjutant Gen-eral under ORS 396.160. [1961 c.454 §94; 1975 c.719§8; 2005 c.512 §11]

398.106 Jurisdiction of general courts-martial. Subject to ORS 398.104, generalcourts-martial have jurisdiction to try per-sons subject to this chapter for any offensemade punishable by this chapter and may,under such limitations as the Governor orthe Adjutant General may prescribe, imposeany of the following punishments:

(1) A fine of not more than $500 for eachoffense or forfeiture of up to two-thirds ofone month’s active duty base pay and allow-ances for up to three months, whichever isgreater;

(2) Forfeiture of pay and allowances dur-ing any period of confinement;

(3) Dishonorable discharge, bad-conductdischarge or dismissal;

(4) Reprimand;

(5) Reduction of an enlisted member tothe lowest or any intermediate enlistedgrade;

(6) Confinement for not more than 365days for each offense; or

(7) Any combination of these punish-ments. [1961 c.454 §95; 1975 c.719 §9; 1985 c.682 §17;1999 c.157 §1; 2005 c.512 §12]

398.108 Jurisdiction of special courts-martial. (1) Subject to ORS 398.104, specialcourts-martial have jurisdiction to try per-sons other than officers for any offense madepunishable by this chapter.

(2) A special court-martial may, undersuch limitations as the Governor or the Ad-jutant General may prescribe, impose any ofthe following punishments:

(a) A fine of not more than $250 for eachoffense or forfeiture of up to one-half of onemonth’s active duty base pay and allowancesfor up to three months, whichever is greater;

(b) Forfeiture of pay and allowances dur-ing any period of confinement;

(c) Bad-conduct discharge;(d) Reprimand;(e) Reduction of an enlisted member to

the lowest or any intermediate enlistedgrade;

(f) Confinement for not more than 365days for each offense; or

(g) Any combination of these punish-ments. [1961 c.454 §96; 1975 c.719 §10; 1985 c.682 §18;1999 c.157 §2; 2005 c.512 §13]

398.110 Jurisdiction of summarycourts-martial. (1) Subject to ORS 398.104,summary courts-martial have jurisdiction totry persons other than officers for any of-fense made punishable by this chapter.

(2) A person with respect to whom sum-mary courts-martial have jurisdiction maynot be brought to trial before a summarycourt-martial if the person objects. If ob-jection to trial by summary court-martial ismade by an accused, trial may be ordered byspecial or general court-martial, as may beappropriate.

(3) A summary court-martial may imposethe following punishments:

(a) For an enlisted member in a paygrade of E-4 or lower, reduction to the lowestor any intermediate pay grade and rank;

(b) For a noncommissioned officer, re-duction to the next lower pay grade andrank;

(c) Forfeiture of pay and allowances dur-ing any period of confinement;

(d) Forfeiture of up to two-thirds of onemonth’s active duty base pay;



(e) A fine not exceeding $25 for each of-fense;

(f) Confinement not exceeding 30 days; or(g) Any combination of these punish-

ments. [1961 c.454 §97; 1975 c.719 §11; 1985 c.682 §19;1999 c.157 §3; 2005 c.512 §14]

398.112 Sentences to be approved byGovernor or Adjutant General. In the or-ganized militia not in federal service:

(1) A sentence of dismissal or dishonor-able discharge may not be executed until thesentence is approved by the Governor; and

(2) A sentence of bad-conduct dischargemay not be executed until the sentence isapproved by the Adjutant General. [1961 c.454§98; 1999 c.157 §4; 2005 c.512 §15]

398.114 When complete record of pro-ceedings and testimony required. A dis-honorable discharge or dismissal shall not beadjudged by any court-martial unless a com-plete record of the proceedings and testimonybefore the court has been made. [1961 c.454 §99;1985 c.682 §20]

398.116 Authorized sentence of generalor special court-martial after declarationof war prior to jurisdiction of UniformCode of Military Justice. A general or spe-cial court-martial convened for the trial of aperson charged with committing an offenseafter the declaration of a war or nationalemergency and before the time when theperson is brought under the jurisdiction ofthe Uniform Code of Military Justice, may,upon conviction, adjudge such punishment asmay be appropriate, except that it may notexceed that authorized for a similar offenseby the Uniform Code of Military Justice.[1961 c.454 §100; 2005 c.512 §37]

398.118 Commutations and pardonsgranted by Governor; remittance offorfeitures and fines. Upon the conditionsand with the restrictions and limitations asthe Governor thinks proper, the Governormay grant commutations and pardons for allpunishments imposed under this chapter bya general court-martial or a special court-martial and may remit all forfeitures andfines imposed under ORS 398.106 or 398.108.[2005 c.512 §17]

398.120 Application for commutationor pardon. (1) When a person subject to thischapter makes an application for commu-tation or pardon to the Governor, a copy ofthe application, signed by the applicant andstating fully the grounds of the application,shall be served by the applicant upon:

(a) The convening authority; and(b) If the applicant is in confinement, the

person in charge of the place of confinement.

(2) The applicant shall present to theGovernor proof by affidavit of the service.

(3) Upon receiving a copy of the applica-tion for commutation or pardon, the conven-ing authority shall provide to the Governor,as soon as practicable, the information andrecords relating to the case as the Governormay request and any other information andrecords relating to the case that the conven-ing authority considers relevant to the issueof commutation or pardon.

(4) Following receipt by the Governor ofan application for commutation or pardon,the Governor may not grant the applicationfor at least 30 days. Upon the expiration of180 days following receipt of an application,if the Governor has not granted the commu-tation or pardon applied for, the applicationshall lapse. Any further proceedings forcommutation or pardon in the case shall bepursuant only to further application and ser-vice. [2005 c.512 §18]

APPOINTMENT AND COMPOSITIONOF COURTS-MARTIAL

398.126 Convening general courts-martial. In the organized militia not in fed-eral service, general courts-martial may beconvened by the Governor or by the AdjutantGeneral. [1961 c.454 §101; 2005 c.512 §19]

398.128 Convening special courts-martial. In the organized militia not in fed-eral service, the commanding officer of agarrison, fort, post, camp, air base, auxiliaryair base or other place where troops are onduty, or of a brigade, regiment, wing, group,detached battalion, separate squadron orother detached command, may convene spe-cial courts-martial. Special courts-martialmay also be convened by superior authority.When any such officer is an accuser, thecourt shall be convened by superior compe-tent authority. [1961 c.454 §102]

398.130 Convening summary courts-martial. (1) In the organized militia not infederal service, the commanding officer of agarrison, fort, post, camp, air base, auxiliaryair base or other place where troops are onduty, or of a brigade, regiment, wing, group,detached battalion, separate squadron orother detached command, may convene asummary court-martial.

(2) When only one commissioned officeris present with a command or detachmentthat officer shall be the summary court-martial of that command or detachment andshall hear and determine all summary court-martial cases. Summary courts-martial may,however, be convened in any case by supe-rior competent authority when considereddesirable by such authority. [1961 c.454 §103; 1985c.682 §21]



398.132 Who may serve on courts-martial. (1) Any commissioned officer of theorganized militia is eligible to serve on allcourts-martial for the trial of any person whomay lawfully be brought before such courtsfor trial.

(2) Any warrant officer of the organizedmilitia is eligible to serve on general andspecial courts-martial for the trial of anyperson, other than a commissioned officer,who may lawfully be brought before suchcourts for trial.

(3)(a) Any enlisted member of the organ-ized militia who is not a member of the sameunit as the accused is eligible to serve ongeneral and special courts-martial for thetrial of any enlisted member who may law-fully be brought before such courts for trial,but shall serve as a member of a court onlyif, before the conclusion of a session calledby the military judge under ORS 398.209,prior to trial or, in the absence of such asession, at least 30 days before the court isassembled for the trial of the accused, theaccused personally or through counsel hasrequested in writing that enlisted membersserve on it. After such a request, the accusedmay not be tried by a general or specialcourt-martial the membership of which doesnot include enlisted members in a numbercomprising at least one-third of the totalmembership of the court, unless eligible en-listed members cannot be obtained on ac-count of physical conditions or militaryexigencies. If such members cannot be ob-tained, the court may be convened and thetrial held without them, but the conveningauthority shall make a detailed writtenstatement, to be appended to the record,stating why they could not be obtained.

(b) As used in this subsection, “unit”means any regularly organized body of theorganized militia not larger than a company,a squadron or a corresponding body.

(4)(a) When it can be avoided, no personsubject to this chapter shall be tried by acourt-martial any member of which is juniorto the person in rank or grade.

(b) When convening a court-martial, theconvening authority shall detail as membersthereof such members of the organizedmilitia as, in the opinion of the conveningauthority, are best qualified for the duty byreason of age, education, training, experi-ence, length of service, and judicial temper-ament. No member of the organized militiais eligible to serve as a member of a generalor special court-martial when the member isthe accuser or a witness for the prosecutionor has acted as investigating officer or ascounsel in the same case.

(5) Before a court-martial is assembledfor the trial of a case, the convening author-

ity may excuse a member of the court fromparticipating in the case. The convening au-thority may delegate any authority underthis subsection to the State Judge Advocateor designee. [1961 c.454 §104; 1975 c.719 §12; 1985c.682 §22; 2003 c.14 §171; 2005 c.512 §20]


398.135 Detail of military judge. (1) Theauthority convening a general court-martialor the State Judge Advocate shall detail amilitary judge to the general court-martial.Subject to regulations issued by the Gover-nor or the Adjutant General, the authorityconvening a special court-martial or theState Judge Advocate may detail a militaryjudge to the special court-martial. A militaryjudge shall preside over each open session ofthe court-martial to which the judge hasbeen detailed.

(2) A military judge shall be a commis-sioned officer of the organized militia or ofany of the Armed Forces of the UnitedStates, be a member of the bar of the highestcourt of a state or a member of the bar of afederal court and be certified to be qualifiedfor such duty by the State Judge Advocate.

(3) The military judge of a general orspecial court-martial shall be designated bythe State Judge Advocate, or designee, fordetail by the convening authority, and, un-less the court-martial was convened by theGovernor or the Adjutant General, neitherthe convening authority nor any member ofthe staff of the convening authority shallprepare or review any report concerning theeffectiveness, fitness, or efficiency of themilitary judge so detailed, which relates toperformance of duty as a military judge.

(4) A person is not eligible to act as amilitary judge in a case if the person is theaccuser or a witness for the prosecution orhas acted as investigating officer or as acounsel in the same case.

(5) The military judge of a court-martialmay not consult with the members of thecourt except in the presence of the accused,trial counsel, and defense counsel, nor maythe military judge vote with members of thecourt. [1975 c.719 §14 (enacted in lieu of 398.134); 1985c.682 §23; 1999 c.94 §1; 2005 c.512 §21]

398.136 Detail of trial counsel and de-fense counsel. (1) For each general andspecial court-martial the staff judge advocatefor the unit, command or organization shalldetail trial counsel and such assistants asthe staff judge advocate considers appropri-ate. The State Judge Advocate shall detaildefense counsel. A person who has acted asinvestigating officer, military judge or courtmember in any case may not act later astrial counsel, assistant trial counsel or, un-less expressly requested by the accused, as



defense counsel or assistant defense counselin the same case. A person who has acted forthe prosecution may not act later in thesame case for the defense, nor may any per-son who has acted for the defense act laterin the same case for the prosecution.

(2) Trial counsel or defense counsel de-tailed for a general court-martial must be:

(a) A judge advocate qualified under theUniform Code of Military Justice; or

(b) A person who is:(A) A member of the Oregon State Bar,

or a member of the bar of a federal court oran attorney allowed under ORS 9.241 topractice before a court of this state; and

(B) Certified as competent to performsuch duties by the State Judge Advocate.

(3) In the case of a special court-martial:(a) If the trial counsel is qualified to act

as counsel before a general court-martial, thedefense counsel detailed by the State JudgeAdvocate must be a person similarly quali-fied; and

(b) If the trial counsel is a member of theOregon State Bar, the defense counsel de-tailed by the State Judge Advocate musthave the same qualifications. [1961 c.454 §106;1975 c.719 §15; 1985 c.682 §24; 1999 c.94 §2; 2005 c.512 §22]

398.138 Detail or employment of re-porters and interpreters. Under such reg-ulations as the Governor may prescribe:

(1) Qualified court reporters shall be de-tailed or employed for each general or spe-cial court-martial or court of inquiry torecord the proceedings of and testimonytaken before that court.

(2) Interpreters may be detailed or em-ployed for each general or special court-martial or court of inquiry to interpret forthe court. [1961 c.454 §107; 1985 c.682 §25; 1999 c.94§3]

398.140 Absent and additional mem-bers; effect of absences on trial. (1) Nomember of a general or special court-martialshall be absent or excused after the courthas been assembled for the trial of the ac-cused except for physical disability or as aresult of a challenge or by order of the con-vening authority for good cause.

(2) Whenever a general court-martial,other than a general court-martial composedof a military judge only, is reduced belowfive members, the trial may not proceed un-less the convening authority details newmembers sufficient in number to provide notless than five members. When the new mem-bers have been sworn, the trial may proceedafter the recorded testimony of each witnesspreviously examined has been read to thecourt in the presence of the military judge,the accused, and counsel for both sides.

(3) Whenever a special court-martial,other than a special court-martial composedof a military judge only, is reduced belowthree members, the trial may not proceedunless the convening authority details newmembers sufficient in number to provide notless than three members. When the newmembers have been sworn, the trial shallproceed as if no evidence has previously beenintroduced, unless a verbatim record of thetestimony of previously examined witnessesor a stipulation thereof is read to the courtin the presence of the military judge, if any,the accused and counsel for both sides.

(4) If the military judge of a court-martialcomposed of a military judge only is unableto proceed with the trial because of physicaldisability, as a result of a challenge or forother good cause, the trial shall proceed,subject to any applicable conditions of ORS398.102 after the detail of a new militaryjudge as if no evidence had previously beenintroduced unless a verbatim record of theevidence previously introduced or a stipu-lation thereof is read in court in the pres-ence of the new military judge, the accusedand counsel for both sides. [1961 c.454 §108; 1975c.719 §16]

PRETRIAL PROCEDURE398.162 Charges and specifications. (1)

Charges and specifications shall be signed bya person subject to this chapter under oathbefore a person authorized by ORS 396.120 toadminister oaths and shall state:

(a) That the signer has personal know-ledge of, or has investigated, the matters setforth therein; and

(b) That they are true in fact to the bestof the signer’s knowledge and belief.

(2) Upon the preferring of charges, theproper authority shall take immediate stepsto determine what disposition should bemade thereof in the interest of justice anddiscipline, and the person accused shall beinformed of the charges as soon as practica-ble. [1961 c.454 §109; 1985 c.682 §26]

398.164 Compulsory self-incriminationand immaterial and degrading evidenceprohibited. (1) No person subject to thischapter may compel any person to incrimi-nate self or to answer any question the an-swer to which may tend to incriminate theperson.

(2) No person subject to this chapter mayinterrogate, or request any statement from,an accused or a person suspected of an of-fense without first informing the person ofthe nature of the accusation and advising theperson that the person does not have tomake any statement regarding the offense ofwhich the person is accused or suspected and



that any statement made by the person maybe used as evidence against the person in atrial by court-martial.

(3) No person subject to this chapter maycompel any person to make a statement orproduce evidence before any militarytribunal if the statement or evidence is notmaterial to the issue and may tend to de-grade the person.

(4) No statement obtained from any per-son in violation of this section, or throughthe use of coercion, unlawful influence orunlawful inducement may be received in evi-dence against the person in a trial by court-martial. [1961 c.454 §110]

398.166 Investigation. (1) No charge orspecification may be referred to a generalcourt-martial for trial until a thorough andimpartial investigation of all the matters setforth therein has been made. This investi-gation shall include inquiry as to the truthof the matter set forth in the charges, con-sideration of the form of charges, and a rec-ommendation as to the disposition whichshould be made of the case in the interest ofjustice and discipline.

(2) The accused shall be advised of thecharges and of the right to be represented atthat investigation by counsel. Upon requestthe accused shall be represented by civiliancounsel if provided by the accused, or mili-tary counsel selected by the accused if suchcounsel is reasonably available, or by counseldetailed by the officer exercising generalcourt-martial jurisdiction over the command.At that investigation full opportunity shallbe given to the accused to cross-examinewitnesses if they are available and to presentanything in the accused’s own behalf, eitherin defense or mitigation, and the investigat-ing officer shall examine available witnessesrequested by the accused. If the charges areforwarded after the investigation, they shallbe accompanied by a statement of the sub-stance of the testimony taken on both sidesand a copy thereof shall be given to the ac-cused.

(3) If an investigation of the subject mat-ter of an offense has been conducted beforethe accused is charged with offense, and ifthe accused was present at the investigationand afforded the opportunities for represen-tation, cross-examination, and presentationprescribed in subsection (2) of this section,no further investigation of that charge isnecessary under this section unless it is de-manded by the accused after being informedof the charge. A demand for further investi-gation entitles the accused to recall wit-nesses for further cross-examination and tooffer any new evidence in behalf of the ac-cused.

(4) The requirements of this section arebinding on all persons administering thischapter but failure to follow them does notdivest a military court of jurisdiction. [1961c.454 §111; 1985 c.682 §27]

398.168 Forwarding of charges. Whena person is held for trial by general court-martial the commanding officer shall, withineight days after the accused is ordered intoarrest or confinement, if practicable, forwardthe charges, together with the investigationand allied papers, to the person exercisinggeneral court-martial jurisdiction. If that isnot practicable, the officer shall report inwriting to that person the reasons for delay.[1961 c.454 §112; 1975 c.719 §17]

398.170 Advice of State Judge Advo-cate; reference for trial; formal correc-tions. (1) Before directing the trial of anycharge by general court-martial, the conven-ing authority shall refer it to the State JudgeAdvocate for consideration and advice. Theconvening authority may not refer a specifi-cation under a charge to a general court-martial for trial unless the conveningauthority has been advised in writing by theState Judge Advocate that:

(a) The specification alleges an offenseunder this chapter;

(b) The specification is warranted by theevidence indicated in the report of investi-gation, if any, under ORS 398.166; and

(c) A court-martial has jurisdiction overthe accused and the offense.

(2) The advice of the State Judge Advo-cate under subsection (1) of this section withrespect to a specification under a chargeshall include a written and signed statementby the State Judge Advocate:

(a) Expressing conclusions with respectto each matter set forth in subsection (1) ofthis section; and

(b) Recommending action that the con-vening authority take regarding the specifi-cation.

(3) If the specification is referred fortrial, the recommendation of the State JudgeAdvocate shall accompany the specification.

(4) If the charges or specifications arenot formally correct or do not conform to thesubstance of the evidence contained in thereport of the investigating officer, formalcorrections, and such changes in the chargesand specifications as are needed to makethem conform to the evidence, may be made.[1961 c.454 §113; 1985 c.682 §28]

398.172 Service of charges. The trialcounsel to whom court-martial charges arereferred for trial shall cause to be servedupon the accused a copy of the charges uponwhich trial is to be had. No person may,



against the objection of the person, bebrought to trial or be required to participateby self or counsel in a session called by themilitary judge under ORS 398.209 in a gen-eral court-martial within a period of fivedays after the service of the charges uponthe person, or before a special court-martialwithin a period of three days after the ser-vice of the charges upon the person. [1961c.454 §114; 1975 c.719 §18]

TRIAL PROCEDURE398.202 Procedural regulations. The

procedure, including modes of proof, in casesbefore military courts and other militarytribunals may be prescribed by the Governorby military department regulations, whichshall, so far as the Governor considers prac-ticable, apply the principles of law and therules of evidence generally recognized in thetrial of criminal cases in the courts of thestate, but which may not be contrary to orinconsistent with this chapter. [1961 c.454 §115]

398.204 Unlawfully influencing actionof court. (1) No authority convening a gen-eral, special or summary court-martial norany other commanding officer, or officerserving on the staff thereof, may censure,reprimand or admonish the court or anymember, military judge or counsel thereof,with respect to the findings or sentenceadjudged by the court, or with respect to anyother exercise of its or the member’s func-tions in the conduct of the proceeding. Noperson subject to this chapter may attemptto coerce or, by any unauthorized means, in-fluence the action of the court-martial or anyother military tribunal or any memberthereof, in reaching the findings or sentencein any case, or the action of any convening,approving or reviewing authority with re-spect to judicial acts of the authority.

(2) The provisions of subsection (1) ofthis section do not apply to:

(a) General instructional or informationalcourses in military justice if such coursesare designed solely for the purpose of in-structing members of a command in the sub-stantive and procedural aspects ofcourts-martial; and

(b) To statements and instructions givenin open court by the military judge, presidentof a special court-martial, or counsel.

(3) In the preparation of an effectiveness,fitness or efficiency report or any other re-port or document used in whole or in partfor the purpose of determining whether amember of the organized militia is qualifiedto be advanced in grade, or in determiningthe assignment or transfer of a member ofthe organized militia or in determiningwhether a member should be retained on ac-

tive duty, no person subject to this chaptermay, in preparing any such report:

(a) Consider or evaluate the performanceof duty of any such member as a member ofa court-martial; or

(b) Give a less favorable rating or evalu-ation of any member of the organized militiabecause of the zeal with which such member,as counsel, represented any accused before acourt-martial. [1961 c.454 §116; 1975 c.719 §19]

398.206 Duties of trial counsel and de-fense counsel. (1) The trial counsel of ageneral or special court-martial shall prose-cute in the name of the state and shall, un-der the direction of the court, prepare therecord of the proceedings.

(2) The accused has the right to be rep-resented in the accused’s defense before ageneral or special court-martial by civiliancounsel if provided by the accused, or bymilitary counsel of the accused’s own se-lection if reasonably available, or by the de-fense counsel detailed under ORS 398.136.Should the accused have counsel of theaccused’s own selection, the defense counseland assistant defense counsel, if any, whowere detailed, shall, if the accused so desires,act as associate counsel; otherwise they shallbe excused by the military judge or by thepresident of a court-martial without a mili-tary judge.

(3) In every court-martial proceeding thedefense counsel may, in the event of con-viction, forward for attachment to the recordof proceedings a brief of such matters as de-fense counsel feels should be considered inbehalf of the accused on review, includingany objection to the contents of the recordwhich defense counsel considers appropriate.

(4) An assistant trial counsel of a generalcourt-martial may, under the direction of thetrial counsel or when qualified to be a trialcounsel as required by ORS 398.136, performany duty imposed by law, regulation or thecustom of the service upon the trial counselof the court. An assistant trial counsel of aspecial court-martial may perform any dutyof the trial counsel.

(5) An assistant defense counsel of ageneral or special court-martial may, underthe direction of the defense counsel or whenqualified to be the defense counsel as re-quired by ORS 398.136, perform any duty im-posed by law, regulation or the custom of theservice upon counsel for the accused. [1961c.454 §117; 1975 c.719 §20; 1985 c.682 §29]


398.209 Court sessions. (1) At any timeafter the service of charges which have beenreferred for trial to a court-martial composedof a military judge and members, the military



judge may, subject to ORS 398.172, call thecourt into session without the presence ofthe members for the purpose of:

(a) Hearing and determining motions,raising defenses or objections which are ca-pable of determination without trial of theissues raised by a plea of not guilty;

(b) Hearing and ruling upon any matterwhich may be ruled upon by the militaryjudge under this chapter, whether or not thematter is appropriate for later considerationor decision by the members of the court;

(c) If permitted by regulations issued bythe Governor or the Adjutant General, hold-ing the arraignment and receiving the pleasof the accused; and

(d) Performing any other proceduralfunction which may be performed by themilitary judge under this chapter or underregulations prescribed pursuant to ORS398.202 and which does not require the pres-ence of the members of the court.

(2) These proceedings shall be conductedin the presence of the accused, the defensecounsel, and the trial counsel and shall bemade a part of the record.

(3) When the members of a court-martialdeliberate or vote, only the members may bepresent. All other proceedings, including anyother consultation of the members of thecourt with counsel or the military judge,shall be made a part of the record and shallbe in the presence of the accused, the de-fense counsel, the trial counsel, and in casesin which a military judge has been detailedto the court, the military judge. [1975 c.719 §22(enacted in lieu of 398.208); 2005 c.512 §38]

398.210 Continuances. The militaryjudge or a court-martial without a militaryjudge may, for reasonable cause, grant acontinuance to any party for such time, andas often, as may appear to be just. [1961 c.454§119; 1975 c.719 §23]

398.212 Challenges. (1) The militaryjudge and members of a general or specialcourt-martial may be challenged by the ac-cused or the trial counsel for cause stated tothe court. The military judge or, if none, thecourt shall determine the relevancy and va-lidity of challenges for cause, and may notreceive a challenge to more than one personat a time. Challenges by the trial counselshall ordinarily be presented and decided be-fore those by the accused are offered.

(2) Each accused and the trial counsel isentitled to one peremptory challenge, but themilitary judge may not be challenged exceptfor cause. [1961 c.454 §120; 1975 c.719 §24]

398.214 Oaths. (1) The military judge,interpreters, and in general and specialcourts-martial, members, trial counsel, assis-

tant trial counsel, defense counsel, assistantdefense counsel and reporters shall take anoath or affirmation in the presence of theaccused to perform their duties faithfully.

(2) Each witness before a military courtshall be examined on oath or affirmation.[1961 c.454 §121; 1975 c.719 §25]

398.216 Statute of limitation. (1) Aperson charged with desertion or absencewithout leave in time of war, or with aidingthe enemy, may be tried and punished at anytime without limitation.

(2) Except as otherwise provided in thissection, a person charged with desertion intime of peace or the offense punishable underORS 398.386 is not liable to be tried bycourt-martial if the offense was committedmore than three years before the receipt ofsworn charges and specifications by an offi-cer exercising summary court-martial juris-diction over the command.

(3) Except as otherwise provided in thissection, a person charged with any offense isnot liable to be tried by court-martial orpunished under ORS 398.083 if the offensewas committed more than two years beforethe receipt of sworn charges and specifica-tions by an officer exercising summarycourt-martial jurisdiction over the commandor before the imposition of punishment underORS 398.083.

(4) Periods in which the accused was ab-sent from territory in which the state hasthe authority to apprehend the accused, or inthe custody of civil authorities, or in thehands of the enemy, shall be excluded incomputing the period of limitation prescribedin this section. [1961 c.454 §122; 1985 c.682 §30]

398.218 Former jeopardy. (1) No personmay, without the person’s consent, be trieda second time for the same offense.

(2) No proceeding in which an accusedhas been found guilty by a court-martialupon any charge or specification is a trial inthe sense of this section until the finding ofguilty has become final after review of thecase has been fully completed.

(3) A proceeding which, after the intro-duction of evidence but before a finding, isdismissed or terminated by the conveningauthority or on motion of the prosecution forfailure of available evidence or witnesseswithout any fault of the accused is a trial inthe sense of this section.

(4) Administrative actions or proceedingsdo not bar proceedings under this chapter foran offense. A proceeding under this chapterfor an offense does not bar an administrativeaction or proceeding unless the proceedingfor an offense results in a finding of notguilty. [1961 c.454 §123; 1985 c.682 §31; 1999 c.157 §5]



398.220 Pleas of accused. (1) If an ac-cused arraigned before a court-martial makesan irregular pleading, or after a plea ofguilty sets up matter inconsistent with theplea, or if it appears that the accused hasentered the plea of guilty improvidently orthrough lack of understanding of its meaningand effect, or if the accused fails or refusesto plead, a plea of not guilty shall be enteredin the record, and the court shall proceed asthough the accused had pleaded not guilty.

(2) With respect to any charge or specifi-cation to which a plea of guilty has beenmade by the accused and accepted by themilitary judge or by a court-martial withouta military judge, a finding of guilty of thecharge or specification may be entered im-mediately without vote. This finding shallconstitute the finding of the court unless theplea of guilty is withdrawn prior to an-nouncement of the sentence, in which eventthe proceedings shall continue as though theaccused had pleaded not guilty. [1961 c.454 §124;1985 c.682 §32]

398.222 Opportunity to obtain wit-nesses and evidence. (1) The trial counsel,the defense counsel and the court-martialshall have equal opportunity to obtain wit-nesses and other evidence in accordancewith such military department regulations asthe Governor may prescribe.

(2) The military judge, the president of acourt-martial or a summary court officermay:

(a) Issue a warrant for the arrest of anyaccused person who, having been served witha warrant and a copy of the charges, diso-beys a written order by the convening au-thority to appear before the court;

(b) Issue subpoenas duces tecum andother subpoenas;

(c) Enforce by attachment the attendanceof witnesses and the production of books andpapers; and

(d) Sentence for refusal to be sworn or toanswer, as provided in actions before civilcourts of the state.

(3) Process issued in court-martial casesto compel witnesses to appear and testify andto compel the production of other evidenceshall run to any part of the state. [1961 c.454§125; 1975 c.719 §26]

398.224 Refusal to appear or testify. (1)Any person not subject to this chapter com-mits a Class B misdemeanor if the person:

(a) Has been duly subpoenaed to appearas a witness before a court-martial, court ofinquiry or any other military court or board,or before any military or civil officer desig-nated to take a deposition to be read in evi-

dence before such a court, commission orboard;

(b) Has been duly paid or tendered thefees and mileage of a witness at the ratesallowed to witnesses attending the circuitcourt of the state in ORS 44.415 (2); and

(c) Willfully neglects or refuses to ap-pear, or refuses to qualify as a witness or totestify or to produce any evidence which thatperson may have been legally subpoenaed toproduce.

(2) The district attorney of the county inwhich the offense occurred, upon certifica-tion of the facts by the military court, courtof inquiry or board, shall prosecute any per-son who commits the offense described insubsection (1) of this section. [1961 c.454 §126;1985 c.682 §33; 1989 c.980 §13; 2005 c.512 §23; 2011 c.597§189]

398.226 Contempt. (1) A military courtmay punish for contempt any person whouses any menacing word, sign or gesture inits presence, or who disturbs its proceedingsby any riot or disorder. The punishment maynot exceed confinement for 30 days or a fineof $100, or both.

(2) A military court shall have the con-tempt power possessed by a civilian court asprovided under ORS 33.015 to 33.155.

(3) A person found in contempt underthis section and ordered confined may beconfined in a county jail upon written orderof the military judge.

(4) A person ordered confined under thissection may be delivered to the civilian au-thority by a military or civilian law enforce-ment authority.

(5) The county jail may not charge theOregon Military Department or the state forthe costs of a person’s confinement underthis section. [1961 c.454 §127; 2005 c.512 §24]

398.228 Depositions. (1) At any time af-ter charges have been signed, as provided inORS 398.162, any party may take oral orwritten depositions unless the military judgeor court-martial without a military judgehearing the case or, if the case is not beingheard, an authority competent to convene acourt-martial for the trial of those chargesforbids it for good cause. If a deposition is tobe taken before charges are referred for trial,such authority may designate commissionedofficers to represent the prosecution and thedefense and may authorize those officers totake the deposition of any witness.

(2) The party at whose instance a deposi-tion is to be taken shall give to every otherparty reasonable written notice of the timeand place for taking the deposition.

(3) Depositions may be taken before andauthenticated by any military or civil officer



authorized by the laws of the state or by thelaws of the place where the deposition istaken to administer oaths.

(4) A duly authenticated deposition takenupon reasonable notice to the other parties,so far as otherwise admissible under therules of evidence, may be read in evidenceor, in the case of audiotape, videotape orsimilar material, may be played as evidencebefore any military court or commission, inany proceeding before any court-martial or inany proceeding before a court of inquiry, ifit appears:

(a) That the witness resides or is beyondthe state in which the court-martial or courtof inquiry is ordered to sit, or beyond thedistance of 100 miles from the place of hear-ing;

(b) That the witness by reason of death,age, sickness, bodily infirmity, imprisonment,military necessity, nonamenability to proc-ess, or other reasonable cause, is unable orrefuses to appear and testify in person at theplace of trial or hearing; or

(c) That the present whereabouts of thewitness is unknown. [1961 c.454 §128; 1985 c.682§34]l

398.230 Admissibility of records ofcourts of inquiry. (1) In any case not ex-tending to the dismissal of a commissionedofficer, the sworn testimony, contained in theduly authenticated record of proceedings ofa court of inquiry, of a person whose oraltestimony cannot be obtained, may, if other-wise admissible under the rules of evidence,be read in evidence by any party before acourt-martial if the accused was a party be-fore the court of inquiry and if the same is-sue was involved or if the accused consentsto the introduction of such evidence.

(2) Such testimony may be read in evi-dence only by the defense in cases extendingto the dismissal of a commissioned officer.

(3) Such testimony may also be read inevidence before a court of inquiry or a mili-tary board. [1961 c.454 §129]

398.232 Voting and rulings. (1) Votingby members of a general or special court-martial on the findings and on the sentence,and by members of a court-martial without amilitary judge upon questions of challenge,on the findings and on the sentence shall beby secret written ballot. The junior memberof the court shall in each case count thevotes. The count shall be checked by thepresident, who shall forthwith announce theresult of the ballot to the members of thecourt.

(2) The military judge and, except forquestions of challenge, the president of acourt-martial without a military judge, shallrule upon all questions of law and allinterlocutory questions, arising during theproceedings. Any such ruling made by themilitary judge upon any question of law orany interlocutory question other than thefactual issue of mental responsibility of theaccused, or by the president of a court-martial without a military judge upon anyquestion of law other than a motion for afinding of not guilty is final and constitutesthe ruling of the court. However, the mili-tary judge or the president of a court-martialwithout a military judge may change a rulingat any time during the trial. Unless the rul-ing is final, if any member objects thereto,the court shall be cleared and closed and thequestion decided by a voice vote as providedin ORS 398.234 beginning with the junior inrank.

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

(a) That the accused must be presumedto be innocent until guilt is established bylegal and competent evidence beyond reason-able doubt;

(b) That in the case being considered, ifthere is a reasonable doubt as to the guilt ofthe accused, the doubt must be resolved infavor of the accused and the accused mustbe acquitted;

(c) That if there is a reasonable doubt asto the degree of guilt, the findings must bein a lower degree as to which there is noreasonable doubt; and

(d) That the burden of proof to establishthe guilt of the accused beyond reasonabledoubt is upon the state.

(4) Subsections (1), (2) and (3) of thissection do not apply to a court-martial com-posed of a military judge only. The militaryjudge of such a court-martial shall determineall questions of law and fact arising duringthe proceedings, and, if the accused is con-victed, adjudge an appropriate sentence. Themilitary judge of such a court-martial shallmake a general finding and shall in additionon request find the facts specially. If anopinion or memorandum of decision is filed,it will be sufficient if the findings of fact ap-



pear therein. [1961 c.454 §130; 1975 c.719 §27; 1985c.682 §35]

398.234 Number of votes required. (1)No person may be convicted of an offense,except by the concurrence of two-thirds ofthe members present at the time the vote istaken.

(2) All sentences shall be determined bythe concurrence of two-thirds of the memberspresent at the time that the vote is taken.

(3) All other questions to be decided bythe members of a general or special court-martial shall be determined by a majorityvote. However, a determination to reconsidera finding of guilty or to reconsider a sen-tence, with a view toward decreasing it, maybe made by any lesser vote which indicatesthat the reconsideration is not opposed bythe number of votes required for that findingor sentence. A tie vote on a challenge dis-qualifies the member challenged. A tie voteon a motion for a finding of not guilty or ona motion relating to the question of theaccused’s sanity is a determination againstthe accused. A tie vote on any other questionis a determination in favor of the accused.[1961 c.454 §131; 1985 c.682 §36]

398.236 Court to announce action. Acourt-martial shall announce its findings andsentence to the parties as soon as deter-mined. [1961 c.454 §132]

398.238 Record of trial. (1) Each generalcourt-martial shall keep a separate record ofthe proceedings of the trial of each casebrought before it and the record shall be au-thenticated by the signature of the militaryjudge. If the record cannot be authenticatedby the military judge, by reason of death,disability or absence, it shall be authenti-cated by the signature of the trial counsel orby that of a member if the trial counsel isunable to authenticate it by reason of death,disability or absence.

(2) Each special and summary court-martial shall keep a separate record of theproceedings in each case, and the recordshall be authenticated in the manner re-quired by such regulations as the Governormay prescribe.

(3) A complete record of the proceedingsand testimony shall be prepared:

(a) In each general court-martial case inwhich the sentence adjudged includes a dis-missal or a dishonorable discharge; and

(b) In each special court-martial case inwhich the sentence adjudged includes a dis-honorable discharge.

(4) In all other court-martial cases therecord shall contain such matters as may beprescribed by regulations of the Governor.

(5) A copy of the record of the pro-ceedings of each general and special court-martial shall be given to the accused as soonas it is authenticated. [1961 c.454 §133; 1975 c.719§28; 1985 c.682 §37]

SENTENCES

398.252 Cruel and unusual punish-ments prohibited. Punishment by flogging,or by branding, marking or tattooing on thebody, or any other cruel or unusual punish-ment, may not be adjudged by any court-martial or inflicted upon any person subjectto this chapter. The use of irons, single ordouble, except for the purpose of safe cus-tody, is prohibited. [1961 c.454 §134]

398.254 Punishments limited. (1) Thepunishments which a court-martial may di-rect for an offense may not exceed limitsprescribed by this chapter.

(2) Unless otherwise provided in regu-lation to be prescribed by the Governor orAdjutant General, a court-martial sentenceof an enlisted member in a pay grade aboveE-1 reduces that member to pay grade E-1,effective on the date on which the sentenceis approved by the convening authority,when the sentence includes a dishonorabledischarge or dismissal.

(3) If the sentence of a member who isreduced in pay grade under subsection (2) ofthis section is set aside, disapproved or asfinally approved does not include any pun-ishment described in subsection (2) of thissection, the rights and privileges of whichthe member was deprived because of that re-duction shall be restored and the member isentitled to the pay and allowances to whichthe member would have been entitled for theperiod the reduction was in effect. [1961 c.454§135; 1985 c.682 §38]

398.256 Effective date of sentence. (1)Whenever a sentence of a court-martial aslawfully adjudged and approved includes aforfeiture of pay or allowances, the forfeituremay apply to pay or allowances becomingdue on or after the date the sentence is ap-proved by the convening authority. Noforfeiture may extend to any pay or allow-ances accrued before that date.

(2) Any period of confinement included ina sentence of a court-martial begins to runfrom the date the sentence is ordered to beexecuted by the convening authority but pe-riods during which the sentence to confine-



ment is suspended or deferred shall beexcluded in computing the service of theterm of confinement. Regulations prescribedby the Governor may provide that sentencesof confinement may not be executed untilapproved by designated officers.

(3) All other sentences of courts-martialare effective on the date ordered executed.[1961 c.454 §136; 1985 c.682 §39]

398.258 Execution of confinement. (1)A sentence of confinement adjudged by amilitary court, whether or not the sentenceincludes discharge or dismissal, and whetheror not the discharge or dismissal has beenexecuted, may be carried into execution byconfinement in any place of confinement un-der the control of any of the forces of theorganized militia or in any jail, penitentiaryor prison designated for that purpose. Per-sons so confined in a jail, penitentiary orprison are subject to the same discipline andtreatment as persons confined or committedto the jail, penitentiary or prison by thecourts of the state or of any political subdi-vision thereof.

(2) The keepers, officers and wardens ofcounty jails, penitentiaries or prisons desig-nated by the Governor, or by such person asthe Governor may authorize to act underORS 398.060, shall receive persons orderedinto confinement before trial and personscommitted to confinement by a military courtand shall confine them according to law.

(3) A person confined under this sectionshall have the status of a priority prisoneras defined in ORS 398.058 and may be re-leased only upon order of a military court.

(4) A keeper, officer or warden describedin subsection (2) of this section may not re-quire payment of any fee or charge for re-ceiving or confining a person under thissection. [1961 c.454 §137; 1975 c.719 §29; 1985 c.682 §40;2005 c.512 §25]

398.260 [1985 c.682 §13; repealed by 1999 c.157 §8]

REVIEW OF COURTS-MARTIAL398.272 Approval and execution or

suspension of sentence. Except as providedin ORS 398.112 and 398.282, a court-martialsentence, unless suspended, may be orderedexecuted by the convening authority whenapproved. The convening authority shall ap-prove the sentence or such part, amount orcommuted form of the sentence as the con-vening authority sees fit, and may suspendthe execution of the sentence as approved.[1961 c.454 §138; 1985 c.682 §41]

398.274 Initial review and action ontrial record. (1) After a trial by court-martial the record shall be forwarded to theconvening authority, as reviewing authority,and action thereon may be taken by the per-

son who convened the court, a commissionedofficer commanding for the time being, asuccessor in command or by the Governor.

(2) The convening authority shall referthe record of each general court-martial tothe State Judge Advocate, who shall submita written opinion thereon to the conveningauthority. If the final action of the court hasresulted in an acquittal of all charges andspecifications, the opinion shall be limited toquestions of jurisdiction. [1961 c.454 §§139,140]

398.276 Reconsideration and revisionof court’s ruling. (1) If a specification be-fore a court-martial has been dismissed onmotion and the ruling does not amount to afinding of not guilty, the convening authoritymay return the record to the court for re-consideration of the ruling and any furtherappropriate action.

(2) Where there is an apparent error oromission in the record or where the recordshows improper or inconsistent action by acourt-martial with respect to a finding orsentence which can be rectified without ma-terial prejudice to the substantial rights ofthe accused, the convening authority mayreturn the record to the court for appropri-ate action. In no case, however, may the re-cord be returned:

(a) For reconsideration of a finding of notguilty of any specification, or a ruling whichamounts to a finding of not guilty;

(b) For reconsideration of a finding of notguilty of any charge, unless the record showsa finding of guilty under a specification laidunder that charge, which sufficiently allegesa violation of some section of this chapter;or

(c) For increasing the severity of thesentence unless the sentence prescribed forthe offense is mandatory. [1961 c.454 §141]

398.278 Rehearings. (1) If the conveningauthority disapproves the findings and sen-tence of a court-martial the convening au-thority may, except where there is lack ofsufficient evidence in the record to supportthe findings, order a rehearing. In such acase the convening authority shall state thereasons for disapproval. If the convening au-thority disapproves the findings and sentenceand does not order a rehearing, the conven-ing authority shall dismiss the charges.

(2) Each rehearing shall take place be-fore a court-martial composed of membersnot members of the court-martial which firstheard the case. Upon a rehearing the ac-cused may not be tried for any offense ofwhich the accused was found not guilty bythe first court-martial, and no sentence inexcess of or more severe than the originalsentence may be imposed, unless the sen-tence is based upon a finding of guilty of an



offense not considered upon the merits in theoriginal proceedings, or unless the sentenceprescribed for the offense is mandatory. [1961c.454 §142]

398.280 Approval by convening au-thority. In acting on the findings and sen-tence of a court-martial, the conveningauthority may approve only such findings ofguilty, and the sentence or such part oramount of the sentence, as the conveningauthority finds correct in law and fact andas the convening authority in the discretionof the convening authority determines shouldbe approved. Unless the convening authorityindicated otherwise, approval of the sentenceis approval of the findings and sentence. [1961c.454 §143]

398.282 Review of records; disposition.(1) If the convening authority is the Gover-nor, action by the Governor on the reviewof any record of trial is final.

(2) In all other cases not covered by sub-section (1) of this section, if the sentence ofa special court-martial as approved by theconvening authority includes a dishonorabledischarge, whether or not suspended, the en-tire record shall be sent to the appropriatejudge advocate of the state force concernedto be reviewed in the same manner as a re-cord of trial by general court-martial. Therecord and the opinion of the judge advocateshall then be sent to the State Judge Advo-cate for review.

(3) All other special and summary court-martial records shall be sent to the judgeadvocate of the appropriate force of the or-ganized militia and shall be acted upon,transmitted, and disposed of as may be pre-scribed by the Governor.

(4) The State Judge Advocate shall re-view the record of trial in each case sent tothe State Judge Advocate for review as pro-vided under subsection (2) of this section. Ifthe final action of the court-martial has re-sulted in an acquittal of all charges andspecifications, the opinion of the State JudgeAdvocate shall be limited to questions of ju-risdiction.

(5) The State Judge Advocate shall takefinal action in any case reviewable by theState Judge Advocate.

(6) In a case reviewable by the StateJudge Advocate under this section, the StateJudge Advocate may act only with respect tothe findings and sentence as approved by theconvening authority. The State Judge Advo-cate may affirm only such findings of guilty,and the sentence or such part or amount ofthe sentence, as the State Judge Advocatefinds correct in law and fact and determines,on the basis of the entire record, should beapproved. In considering the record the State

Judge Advocate may weigh the evidence,judge the credibility of witnesses and deter-mine controverted questions of fact, recog-nizing that the trial court saw and heard thewitnesses. If the State Judge Advocate setsaside the findings and sentence, the StateJudge Advocate may, except where the set-ting aside is based on lack of sufficient evi-dence in the record to support the findings,order a rehearing. If the State Judge Advo-cate sets aside the findings and sentence anddoes not order a rehearing, the State JudgeAdvocate shall order that the charges bedismissed.

(7) In a case reviewable by the StateJudge Advocate under this section, the StateJudge Advocate shall instruct the conveningauthority to act in accordance with the StateJudge Advocate’s decision on the review. Ifthe State Judge Advocate has ordered a re-hearing but the convening authority finds arehearing impracticable, the State Judge Ad-vocate may dismiss the charges.

(8) The State Judge Advocate may orderone or more boards of review each composedof not fewer than three commissioned offi-cers of the organized militia, each of whommust be a member of the Oregon State Bar.Each board of review shall review the recordof any trial by special court-martial referredto it by the State Judge Advocate. Boards ofreview have the same authority on review asthe State Judge Advocate has under thissection. [1961 c.454 §144; 1985 c.682 §42; 2005 c.512 §39]

398.284 Error of law; lesser includedoffense. (1) A finding or sentence of acourt-martial may not be held incorrect onthe ground of an error of law unless the er-ror materially prejudices the substantialrights of the accused.

(2) Any reviewing authority with thepower to approve or affirm a finding of guiltymay approve or affirm so much of the findingas includes a lesser included offense. [1961c.454 §145]

398.286 Review counsel. (1) Upon thefinal review of a sentence of a generalcourt-martial, the accused has the right tobe represented by counsel before the review-ing authority, before the staff judge advocateor legal officer, as the case may be, and be-fore the State Judge Advocate.

(2) Upon the request of an accused enti-tled to be so represented, the State JudgeAdvocate shall appoint a lawyer who is amember of the organized militia and who hasthe qualifications prescribed in ORS 398.136,if available, to represent the accused beforethe reviewing authority, before the staffjudge advocate or legal officer, as the casemay be, and before the State Judge Advocate,in the review of cases specified in subsection(1) of this section.



(3) If provided by the accused, an accusedentitled to be so represented may be repre-sented by civilian counsel before the review-ing authority, before the staff judge advocateor legal officer, as the case may be, and be-fore the State Judge Advocate. [1961 c.454 §146;1985 c.682 §43]

398.288 Vacation of suspension. (1) Be-fore the vacation of the suspension of a spe-cial court-martial sentence which asapproved includes a dishonorable discharge,or of any general court-martial sentence, theofficer having court-martial jurisdiction overthe probationer shall hold a hearing on thealleged violation of probation. The proba-tioner shall be represented at the hearing bycounsel if the probationer so desires.

(2) The record of the hearing and therecommendation of the officer having specialcourt-martial jurisdiction shall be sent foraction to the Governor in cases involving ageneral court-martial sentence and to thecommanding officer of the force of the or-ganized militia of which the probationer is amember in all other cases covered by sub-section (1) of this section. If the Governor orcommanding officer vacates the suspension,any unexecuted part of the sentence excepta dismissal shall be executed.

(3) The suspension of any other sentencemay be vacated by any authority competentto convene, for the command in which theaccused is serving or assigned, a court of thekind that imposed the sentence. [1961 c.454 §147;1985 c.682 §44]

398.290 Petition for new trial. At anytime within two years after approval by theconvening authority of a court-martial sen-tence which extends to dismissal or dis-honorable discharge, the accused maypetition the Governor for a new trial onground of newly discovered evidence or fraudon the court-martial. [1961 c.454 §148; 1985 c.682§45]

398.292 Remission and suspension. (1)A convening authority may remit or suspendany part or amount of the unexecuted partof any sentence, including all uncollectedforfeitures.

(2) The Governor may, for good cause,substitute an administrative form of dis-charge for a discharge or dismissal executedin accordance with the sentence of a court-martial. [1961 c.454 §149]

398.294 Restoration. (1) Under suchmilitary department regulations as the Gov-ernor may prescribe, all rights, privilegesand property affected by an executed part ofa court-martial sentence which has been setaside or disapproved, except an executed dis-missal or discharge, shall be restored unlessa new trial or rehearing is ordered and such

executed part is included in a sentence im-posed upon the new trial or rehearing.

(2) If a previously executed sentence ofdishonorable discharge is not imposed on anew trial, the Governor shall substitutetherefor a form of discharge authorized foradministrative issuance unless the accused isto serve out the remainder of the enlistment.

(3) If a previously executed sentence ofdismissal is not imposed on a new trial, theGovernor shall substitute therefor a form ofdischarge authorized for administrative issue,and the commissioned officer dismissed bythat sentence may be reappointed by theGovernor alone to such commissioned gradeand with such rank as in the opinion of theGovernor that former officer would have at-tained had the officer not been dismissed.The reappointment of such former officermay be made if a position vacancy is avail-able under applicable tables of organization.All time between the dismissal and the reap-pointment shall be considered as service forall purposes. [1961 c.454 §150; 1985 c.682 §46]

398.296 Finality of proceedings, find-ings and sentences. The proceedings, find-ings and sentences of court-martial asreviewed and approved, as required by thischapter, and all dismissals and dischargescarried into execution under sentences bycourt-martial following review and approval,as required by this chapter, are final andconclusive. Orders publishing the pro-ceedings of court-martial and all actiontaken pursuant to those proceedings arebinding upon all departments, courts, agen-cies and officers of the state, subject only toaction upon a petition for a new trial asprovided in ORS 398.290. [1961 c.454 §151]

PUNITIVE PROVISIONS398.302 When persons may be tried or

punished. A person may not be tried orpunished for any offense provided for in ORS398.302 to 398.400, unless:

(1) The offense was committed while theperson was in a duty status during a periodof time in which the person was under lawfulorders to be in a duty status; or

(2) The offense charged has a connectionwith the military duties of the person. Forpurposes of this subsection, the requiredconnection with military duties is conclu-sively established for offenses for whichthere is no equivalent offense in the generalcriminal laws of this state and for offensesinvolving wrongful use, possession, manufac-ture, distribution or introduction of a sub-stance described in ORS 398.391 (2) inviolation of ORS 398.391. [1961 c.454 §152; 1975c.719 §30; 1999 c.157 §6; 2005 c.512 §26]



398.304 Principals. Any person subjectto this chapter who:

(1) Commits an offense punishable by thischapter, or aids, abets, counsels, commandsor procures its commission; or

(2) Causes an act to be done which if di-rectly performed by the person would bepunishable by this chapter;is a principal. [1961 c.454 §153]

398.306 Accessory after fact. Any per-son subject to this chapter who, knowingthat an offense punishable by this chapterhas been committed, receives, comforts orassists the offender in order to hinder orprevent the apprehension, trial or punish-ment of the offender shall be punished as acourt-martial may direct. [1961 c.454 §154]

398.308 Conviction of lesser includedoffense. An accused may be found guilty ofan offense necessarily included in the offensecharged or of an attempt to commit eitherthe offense charged or an offense necessarilyincluded therein. [1961 c.454 §155]

398.310 Attempts. (1) An act done withspecific intent to commit an offense underthis chapter, amounting to more than merepreparation and tending even though failingto effect its commission, is an attempt tocommit that offense.

(2) Any person subject to this chapterwho attempts to commit any offense punish-able by this chapter shall be punished as acourt-martial may direct, unless otherwisespecifically prescribed.

(3) Any person subject to this chaptermay be convicted of an attempt to commit anoffense although it appears on the trial thatthe offense was consummated. [1961 c.454 §156]

398.312 Conspiracy. Any person subjectto this chapter who conspires with any otherperson to commit an offense under thischapter shall, if one or more of theconspirators does an act to effect the objectof the conspiracy, be punished as a court-martial may direct. [1961 c.454 §157]

398.314 Solicitation. (1) Any person sub-ject to this chapter who solicits or advisesanother or others to desert in violation ofORS 398.320 or mutiny in violation of ORS398.338 shall be punished as a court-martialmay direct.

(2) Any person subject to this chapterwho solicits or advises another or others tocommit an act of misbehavior before the en-emy in violation of ORS 398.348 or seditionin violation of ORS 398.338 shall be punishedas a court-martial may direct. [1961 c.454 §158]

398.316 Fraudulent enlistment, ap-pointment or separation. Any person who:

(1) Procures the person’s own enlistment

or appointment in the organized militia byknowingly false representation or deliberateconcealment as to qualifications for thatenlistment or appointment and receives payor allowances thereunder; or

(2) Procures the person’s own separationfrom the organized militia by knowingly falserepresentation or deliberate concealment asto eligibility for that separation;shall be punished as a court-martial may di-rect. [1961 c.454 §159]

398.318 Unlawful enlistment, appoint-ment or separation. Any person subject tothis chapter who effects an enlistment orappointment in or a separation from the or-ganized militia of any person who is knownto the person to be ineligible for thatenlistment, appointment or separation be-cause it is prohibited by law, regulation ororder shall be punished as a court-martialmay direct. [1961 c.454 §160]

398.320 Desertion. (1) Any member ofthe organized militia who:

(a) Without authority goes or remainsabsent from the unit, organization or placeof duty of the member with intent to remainaway therefrom permanently;

(b) Quits the unit, organization or placeof duty of the member with intent to avoidhazardous duty or to shirk important service;or

(c) Without being regularly separatedfrom one of the forces of the organizedmilitia enlists or accepts an appointment inthe same or another one of the forces of theorganized militia without fully disclosing thefact that the member has not been regularlyseparated;is guilty of desertion.

(2) Any commissioned officer of the or-ganized militia who, after tender of resigna-tion and before notice of its acceptance, quitsthe post or proper duties of the officer with-out leave and with intent to remain awaytherefrom permanently is guilty of desertion.

(3) Any person found guilty of desertionor attempt to desert shall be punished as acourt-martial may direct. [1961 c.454 §161]

398.322 Absence without leave. Anyperson subject to this chapter who, withoutauthority:

(1) Fails to go to the appointed place ofduty of the person at the time prescribed;

(2) Goes from that place; or(3) Is absent from the unit, organization

or place of duty at which the person is re-quired to be at the time prescribed;shall be punished as a court-martial may di-rect. [1961 c.454 §162]



398.324 Failure to make requiredmove. Any person subject to this chapterwho through neglect or design misses themovement of a ship, aircraft or unit withwhich the person is required in the courseof duty to move shall be punished as acourt-martial may direct. [1961 c.454 §163]

398.326 Contempt toward officials. Anycommissioned officer subject to this chapterwho uses contemptuous words against thePresident, the Governor or the legislature ofthis state, or the Governor or legislature ofany state, territory, commonwealth or pos-session wherein that officer may be serving,shall be punished as a court-martial may di-rect. [1961 c.454 §164; 1985 c.682 §47]

398.328 Disrespect toward superiorcommissioned officer. Any person subjectto this chapter who behaves with disrespecttoward a superior commissioned officer shallbe punished as a court-martial may direct.[1961 c.454 §165]

398.330 Assaulting or willfully diso-beying superior commissioned officer.Any person subject to this chapter who:

(1) Strikes a superior commissioned offi-cer or draws or lifts up any weapon or offersany violence against the officer while the of-ficer is in the execution of office; or

(2) Willfully disobeys a lawful commandof a superior commissioned officer;shall be punished as a court-martial may di-rect. [1961 c.454 §166]

398.332 Insubordinate conduct towardwarrant officer or noncommissioned offi-cer. Any warrant officer or enlisted memberwho:

(1) Strikes or assaults a warrant officeror noncommissioned officer while that officeris in the execution of office;

(2) Willfully disobeys the lawful order ofa warrant officer or noncommissioned officer;or

(3) Treats with contempt or isdisrespectful in language or deportment to-ward a warrant officer or noncommissionedofficer while that officer is in the executionof office;shall be punished as a court-martial may di-rect. [1961 c.454 §167]

398.334 Failure to obey order or regu-lation. Any person subject to this chapterwho:

(1) Violates or fails to obey any lawfulgeneral order or regulation;

(2) Having knowledge of any other lawfulorder issued by a member of the organizedmilitia, which it is the duty of the person toobey, fails to obey the order; or

(3) Is derelict in the performance of du-ties;shall be punished as a court-martial may di-rect. [1961 c.454 §168]

398.336 Cruelty and maltreatment.Any person subject to this chapter who isguilty of cruelty toward, or oppression ormaltreatment of, any person subject to theorders of the person shall be punished as acourt-martial may direct. [1961 c.454 §169]

398.338 Mutiny or sedition. (1) Anyperson subject to this chapter who:

(a) With intent to usurp or override law-ful military authority refuses, in concertwith another, to obey orders or otherwise dothe person’s duty or creates any violence ordisturbance is guilty of mutiny;

(b) With intent to cause the overthrowor destruction of lawful civil authority, cre-ates, in concert with any other person, re-volt, violence or other disturbance againstthat authority is guilty of sedition;

(c) Fails to do the utmost to prevent andsuppress a mutiny or sedition being commit-ted in the presence of the person, or fails totake all reasonable means to inform a supe-rior commissioned officer or commanding of-ficer of a mutiny or sedition which theperson knows or has reason to believe istaking place, is guilty of a failure to suppressor report a mutiny or sedition.

(2) A person who is found guilty of at-tempted mutiny, mutiny, sedition or failureto suppress or report a mutiny or sedition,shall be punished as a court-martial may di-rect. [1961 c.454 §170]

398.340 Resistance, breach of arrestand escape. Any person subject to thischapter who resists apprehension or breaksarrest or who escapes from custody or con-finement shall be punished as a court-martialmay direct. [1961 c.454 §171; 1985 c.682 §48]

398.342 Releasing prisoner withoutproper authority. Any person subject tothis chapter who, without proper authority,releases any prisoner committed to thecharge of the person, or who through neglector design suffers any such prisoner to escape,shall be punished as a court-martial may di-rect, whether or not the prisoner was com-mitted in strict compliance with law. [1961c.454 §172]

398.344 Unlawful detention. Any personsubject to this chapter who, except as pro-vided by law or regulation, apprehends, ar-rests or confines any person shall bepunished as a court-martial may direct. [1961c.454 §173]

398.346 Noncompliance with proce-dural rules. Any person subject to thischapter who:



(1) Is responsible for unnecessary delayin the disposition of any case of a personaccused of an offense under this chapter; or

(2) Knowingly and intentionally fails toenforce or comply with any provision of thischapter regulating the proceedings before,during or after trial of an accused;shall be punished as a court-martial may di-rect. [1961 c.454 §174]

398.348 Misbehavior before enemy.Any person subject to this chapter who be-fore or in the presence of the enemy:

(1) Runs away;(2) Shamefully abandons, surrenders or

delivers up any command, unit, place or mil-itary property which it is the duty of theperson to defend;

(3) Through disobedience, neglect or in-tentional misconduct endangers the safety ofany such command, unit, place or militaryproperty;

(4) Casts away arms or ammunition;(5) Is guilty of cowardly conduct;(6) Quits a place of duty to plunder or

pillage;(7) Causes false alarms in any command,

unit or place under control of the ArmedForces of the United States or the organizedmilitia;

(8) Willfully fails to do the utmost to en-counter, engage, capture or destroy any en-emy troops, combatants, vessels, aircraft orany other thing, which it is the duty of theperson so to encounter, engage, capture ordestroy; or

(9) Does not afford all practicable reliefand assistance to any troops, combatants,vessels or aircraft of the Armed Forces be-longing to the United States or their allies,to this state or to any other state, when en-gaged in battle;shall be punished as a court-martial may di-rect. [1961 c.454 §175]

398.350 Subordinate compelling sur-render. Any person subject to this chapterwho compels or attempts to compel thecommander of any force of the organizedmilitia of this state or of any other state togive it up to an enemy or to abandon it, orwho strikes the colors or flag to any enemywithout proper authority, shall be punishedas a court-martial may direct. [1961 c.454 §176]

398.352 Improper use of countersign.Any person subject to this chapter who intime of war discloses the parole or counter-sign to any person not entitled to receive it,or who gives to another who is entitled toreceive and use the parole or countersign a

different parole or countersign from thatwhich, to the knowledge of the person, theperson was authorized and required to give,shall be punished as a court-martial may di-rect. [1961 c.454 §177]

398.354 Forcing safeguard. Any personsubject to this chapter who forces a safe-guard shall be punished as a court-martialmay direct. [1961 c.454 §178]

398.356 Captured or abandoned prop-erty. (1) All persons subject to this chaptershall secure all public property taken fromthe enemy for the service of the UnitedStates, and shall give notice and turn overto the proper authority without delay allcaptured or abandoned property in their pos-session, custody or control.

(2) Any person subject to this chapterwho:

(a) Fails to carry out the duties pre-scribed in subsection (1) of this section;

(b) Buys, sells, trades or in any way dealsin or disposes of, captured or abandonedproperty, whereby the person receives or ex-pects any profit, benefit or advantage to selfor another directly or indirectly connectedwith self; or

(c) Engages in looting or pillaging;

shall be punished as a court-martial may di-rect. [1961 c.454 §179]

398.358 Aiding enemy. Any person sub-ject to this chapter who:

(1) Aids, or attempts to aid, the enemywith arms, ammunition, supplies, money orother things; or

(2) Without proper authority, knowinglyharbors or protects or gives intelligence to,or communicates or corresponds with orholds any intercourse with the enemy, eitherdirectly or indirectly;


398.360 Misconduct as prisoner. Anyperson subject to this chapter who, while inthe hands of the enemy in time of war:

(1) For the purpose of securing favorabletreatment by the captors of the person actswithout proper authority in a manner con-trary to law, custom or regulation, to thedetriment of others of whatever nationalityheld by the enemy as civilian or militaryprisoners; or

(2) While in a position of authority oversuch persons maltreats them without justifi-able cause;




398.362 False official statements. Anyperson subject to this chapter, who, with in-tent to deceive, signs any false record, re-turn, regulation, order or other officialdocument, knowing it to be false, or makesany other false official statement knowing itto be false, shall be punished as a court-martial may direct. [1961 c.454 §182]

398.366 Loss, damage, destruction orwrongful disposition of military property.Any person subject to this chapter who,without proper authority:

(1) Sells or otherwise disposes of;(2) Willfully or through neglect damages,

destroys or loses; or(3) Willfully or through neglect suffers to

be lost, damaged, destroyed, sold or wrong-fully disposed of;any military property of the United States orof the state, shall be punished as a court-martial may direct. [1961 c.454 §183]

398.368 Waste, spoilage or destructionof property other than military. Any per-son subject to this chapter who, while in aduty status, willfully or recklessly wastes,spoils or otherwise willfully and wrongfullydestroys or damages any property other thanmilitary property of the United States or ofthe state shall be punished as a court-martialmay direct. [1961 c.454 §184]

398.370 Improper hazarding of vessel.(1) Any person subject to this chapter whowillfully and wrongfully hazards or suffers tobe hazarded any vessel of the Armed Forcesof the United States or of the organizedmilitia shall be punished as a court-martialmay direct.

(2) Any person subject to this chapterwho negligently hazards or suffers to be haz-arded any vessel of the Armed Forces of theUnited States or of the organized militiashall be punished as a court-martial may di-rect. [1961 c.454 §185]

398.372 Driving while drunk. Any per-son subject to this chapter who operates anyvehicle while drunk, or in a reckless orwanton manner, shall be punished as acourt-martial may direct. [1961 c.454 §186; 1975c.719 §31; 1979 c.744 §18; 1985 c.682 §49]

398.374 Drunk on duty. Any personsubject to this chapter other than a sentinelor lookout who is found drunk on duty shallbe punished as a court-martial may direct.[1961 c.454 §187; 1985 c.682 §50]

398.375 Sentinel or lookout drunk orsleeping on post; leaving before relief.Any sentinel or lookout who is found drunkor sleeping upon post, or who leaves it beforebeing regularly relieved, shall be punished asa court-martial may direct. [1985 c.682 §4]

398.376 [1961 c.454 §188; repealed by 1975 c.719 §34]

398.378 Malingering. Any person subjectto this chapter who for the purpose of avoid-ing work duty or service in the organizedmilitia:

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

(2) Intentionally inflicts self-injury;shall be punished as a court-martial may di-rect. [1961 c.454 §189]

398.380 Riot or breach of peace. Anyperson subject to this chapter who causes orparticipates in any riot or breach of thepeace shall be punished as a court-martialmay direct. [1961 c.454 §190]

398.382 [1961 c.454 §191; repealed by 1975 c.719 §34]

398.384 Stealing goods. (1) Any personsubject to this chapter who wrongfully takes,obtains, or withholds, by any means, fromthe possession of the owner or of any otherperson any money, personal property, or ar-ticle of value of any kind:

(a) With intent permanently to depriveor defraud another person of the use andbenefit of property or to appropriate it forpersonal use or to the use of any personother than the owner, steals that propertyand is guilty of larceny; or

(b) With intent temporarily to deprive ordefraud another person of the use and benefitof property or to appropriate it for personaluse or to the use of any person other thanthe owner, is guilty of wrongful appropri-ation.

(2) Any person found guilty of larceny orwrongful appropriation shall be punished asa court-martial may direct. [1961 c.454 §194; 1975c.719 §32; 1985 c.682 §51]

398.386 Perjury. Any person subject tothis chapter who in a judicial proceeding orin a course of justice conducted under thischapter willfully and corruptly gives, upon alawful oath or in any form allowed by law tobe substituted for an oath, any false testi-mony material to the issue or matter of in-quiry is guilty of perjury and shall bepunished as a court-martial may direct. [1961c.454 §192]

398.388 Frauds against government.Any person subject to this chapter:

(1) Who, knowing it to be false orfraudulent:

(a) Makes any claim against the UnitedStates, the state or any officer thereof; or

(b) Presents to any person in the civil ormilitary service thereof, for approval or pay-ment, any claim against the United States,the state, or any officer thereof;

(2) Who, for the purpose of obtaining theapproval, allowance, or payment of any claim



against the United States, the state or anyofficer thereof:

(a) Makes or uses any writing or otherpaper knowing it to contain any false orfraudulent statements;

(b) Makes any oath to any fact or to anywriting or other paper knowing the oath tobe false; or

(c) Forges or counterfeits any signatureupon any writing or other paper, or uses anysuch signature knowing it to be forged orcounterfeited;

(3) Who, having charge, possession, cus-tody or control of any money or other prop-erty of the United States or the state,furnished or intended for the Armed Forcesof the United States or the organized militiaor any force thereof, knowingly delivers toany person having authority to receive it,any amount thereof less than that for whichthe person receives a certificate or receipt;or

(4) Who, being authorized to make or de-liver any paper certifying the receipt of anyproperty of the United States or the state,furnished or intended for the Armed Forcesof the United States or the organized militiaor any force thereof, makes or delivers toany person such writing without having fullknowledge of the truth of the statementstherein contained and with intent to defraudthe United States or the state;

shall upon conviction, be punished as acourt-martial may direct. [1961 c.454 §193]

398.390 [1961 c.454 §195; repealed by 1975 c.719 §34]

398.391 Controlled substances. (1) Anyperson subject to this chapter who wrong-fully uses, possesses, manufactures, distrib-utes or introduces into an installation,vessel, vehicle or aircraft used by or underthe control of the organized militia a sub-stance described in subsection (2) of thissection shall be punished as a court-martialmay direct.

(2) The substances referred to in subsec-tion (1) of this section are the following:

(a) Opium, heroin, cocaine, amphetamine,lysergic acid diethylamide, methamphet-amine, phencyclidine, barbituric acid andmarijuana and any compound or derivativeof any such substance.

(b) Any other substance not specified inparagraph (a) of this subsection that is listedin schedules I to V of section 202 of theControlled Substances Act (21 U.S.C. 812), asmodified under ORS 475.035. [1985 c.682 §3]

398.392 [1961 c.454 §196; 1971 c.743 §363; repealed by1975 c.719 §34]

398.393 Dueling; failure to report du-eling. Any person subject to this chapterwho fights or promotes or is concerned in orconnives at fighting a duel or who, havingknowledge of a challenge sent or about to besent, fails to report the fact promptly to theproper authority, shall be punished as acourt-martial may direct. [1985 c.682 §5]

398.394 Provoking or reproachfulwords or gestures. Any person subject tothis chapter who uses provoking orreproachful words or gestures toward anyother person subject to this chapter shall bepunished as a court-martial may direct. [1985c.682 §6]

398.395 Insufficient funds or credit. (1)Any person subject to this chapter whomakes, draws, utters or delivers any check,draft or order for the payment of money uponany bank or other depository, knowing at thetime that the maker or drawer has not orwill not have sufficient funds in, or creditwith, the bank or other depository for thepayment of that check, draft or order in fullupon its presentment shall be punished as acourt-martial may direct when the personmakes, draws or utters the check, draft ororder:

(a) For the procurement of any article orthing of value, with intent to defraud; or

(b) For the payment of any past due obli-gation or for any other purpose, with intentto deceive.

(2) The making, drawing, uttering or de-livering by a maker or drawer of a check,draft or order for which payment is refusedby the drawee because of insufficient fundsof the maker or drawer in the drawee’s pos-session or control is prima facie evidence ofan intent to defraud or deceive and of aknowledge of insufficient funds in, or creditwith, that bank or other depository unlessthe maker or drawer pays the holder theamount due within five days after receivingnotice, orally or in writing, that the check,draft or order was not paid on presentment.

(3) As used in this section, “credit”means an arrangement or understanding, ex-press or implied, with the bank or other de-pository for the payment of that check, draftor order. [1985 c.682 §7]

398.397 Unlawful force or violence.Any person subject to this chapter who at-tempts or offers with unlawful force or vi-olence to do bodily harm to another person,whether or not the attempt or offer is con-summated is guilty of assault and shall bepunished as a court-martial may direct. [1985c.682 §8]



398.399 Conduct unbecoming officer.Any commissioned officer who is convictedof conduct unbecoming an officer shall bepunished as a court-martial may direct. [1985c.682 §9]

398.400 Conduct to prejudice of goodorder and discipline; limits to jurisdictionof courts-martial. Though not specificallymentioned in this chapter, all disorders andneglects to the prejudice of good order anddiscipline in the organized militia, of whichpersons subject to this code may be guilty,shall be taken cognizance of by a general,special or summary court-martial, accordingto the nature and degree of the offense, andshall be punished at the discretion of thatcourt. However, cognizance shall not betaken of, and jurisdiction may not extend to,the crimes of murder, manslaughter, rape,robbery, maiming, sodomy, arson, extortion,aggravated assault, burglary orhousebreaking, unless the State of Oregondoes not have jurisdiction to prosecute theoffense under the general criminal laws ofthis state or, if the State of Oregon has suchjurisdiction, chooses not to exercise that ju-risdiction. [1985 c.682 §10; 1999 c.157 §7]

MISCELLANEOUS PROVISIONS398.402 Courts of inquiry. (1) Courts of

inquiry to investigate any matter may beconvened by the Governor or by any otherperson designated by the Governor for thatpurpose, whether or not the persons involvedhave requested such an inquiry.

(2) A court of inquiry consists of threeor more commissioned officers. For eachcourt of inquiry the convening authorityshall also appoint counsel for the court.

(3) Any person subject to this chapterwhose conduct is subject to inquiry shall bedesignated as a party. Any person subject tothis chapter or employed in the Oregon Mil-itary Department, who has a direct interestin the subject of inquiry has the right to bedesignated as a party upon request of thecourt. Any person designated as a party shallbe given due notice and has the right to bepresent, to be represented by counsel, tocross-examine witnesses and to introduce ev-idence.

(4) Members of a court of inquiry may bechallenged by a party, but only for causestated to the court.

(5) The members, counsel, the reporterand interpreters of courts of inquiry shalltake an oath of affirmation to faithfully per-form their duties.

(6) Witnesses may be summoned to ap-pear and testify and be examined beforecourts of inquiry, as provided for courts-martial.

(7) Courts of inquiry shall make findingsof fact but may not express opinions or makerecommendations unless required to do so bythe convening authority.

(8) Each court of inquiry shall keep arecord of its proceedings, which shall be au-thenticated by the signatures of the presidentand counsel for the court and forwarded tothe convening authority. If the record cannotbe authenticated by the president, it shall besigned by a member in lieu of the president.If the record cannot be authenticated by thecounsel for the court, it shall be signed by amember in lieu of the counsel. [1961 c.454 §197;1989 c.360 §10]

398.404 Redress of injuries to prop-erty. (1) Whenever complaint is made to anycommanding officer that willful damage hasbeen done to the property of any person orthat the property of any person has beenwrongfully taken by members of the organ-ized militia, the officer may, subject to suchmilitary department regulations as the Gov-ernor may prescribe, convene a board to in-vestigate the complaint. The board shallconsist of from one to three officers and, forthe purpose of that investigation, it haspower to summon witnesses and examinethem upon oath or affirmation, to receivedepositions or other documentary evidence,and to assess the damages sustained againstthe responsible parties. The assessment ofdamages made by the board is subject to theapproval of the commanding officer, and inthe amount approved by the officer shall becharged against the pay of the offenders. Theorder of the commanding officer directingcharges herein authorized is conclusive, ex-cept as provided in subsection (3) of thissection, on any disbursing officer for thepayment by the disbursing officer to the in-jured parties of the damages so assessed andapproved.

(2) If the offenders cannot be ascertained,but the organization or detachment to whichthey belong is known, charges totaling theamount of damages assessed and approvedmay be paid to the injured parties from themilitary fund of the unit or units of the or-ganized militia to which such offenders be-longed.

(3) Any person subject to this chapterwho is accused of causing willful damage toproperty has the right to be represented bycounsel, to summon witnesses in behalf ofthe person and to cross-examine those ap-pearing against the person. The person hasthe right to appeal to the next highercommander. [1961 c.454 §201]

398.406 Execution of process and sen-tence. In the organized militia not in federalservice, the processes and sentences of itscourts-martial shall be executed by the civil



officers prescribed by the laws of the state.Where no provision is made for executingthose processes and sentences, the processor sentence shall be executed by a UnitedStates Marshal or deputy marshal, who shallmake a return to the military officer issuingthe process or the court imposing the sen-tence, pursuant to section 333 of title 32,United States Code. [1961 c.454 §202]

398.408 Process of military courts. (1)Military courts may issue all process neces-sary to carry into effect the powers vested inthose courts. Such courts may issue subpoe-nas and subpoenas duces tecum and enforceby attachment attendance of witnesses andproduction of books and records, when thecourts are sitting within the state and thewitnesses, books and records sought are alsoso located.

(2) Such process may be issued by sum-mary courts-martial, provost courts or thepresident or military judge of other militarycourts and may be directed to and may beexecuted by the marshals of the militarycourt or any peace officer and shall be insuch form as may be prescribed by militarydepartment regulations issued under thischapter.

(3) All officers to whom such process maybe so directed shall execute them and makereturn of their acts thereunder according tothe requirements of those documents. Exceptas otherwise specifically provided in thischapter, no such officer may demand or re-quire payment of any fee or charge for re-ceiving, executing or returning such aprocess or for any service in connectiontherewith. [1961 c.454 §203; 1975 c.719 §33; 1981 c.178§13]

398.410 Payment of fines and disposi-tion thereof. Fines may be paid to a mili-tary court or to an officer executing itsprocess. The amount of such a fine may benoted upon any state roll or account for payof the delinquent and deducted from any payor allowance due or thereafter to become duethe delinquent, until the fine is liquidated.Any sum so deducted shall be turned in tothe military court which imposed the fineand shall be paid over by the officer receiv-ing it in like manner as provided for otherfines and moneys collected under a sentenceof a summary court-martial. Notwithstandingany other law, a fine or penalty imposed bya military court upon an officer or enlistedperson shall be paid by the officer collectingit within 30 days to the State Treasurer andshall be deposited in the General Fund in theState Treasury, to be available for generalgovernmental expenses. [1961 c.454 §204; 1963 c.169§7]

398.412 Immunity for action of mili-tary courts. No action or proceeding maybe prosecuted against the convening author-ity or a member of a military court or officeror person acting under its authority or re-viewing its proceedings because of the ap-proval, imposition, or execution of anysentence or the imposition or collection of afine or penalty, or the execution of anyprocess of a military court. [1961 c.454 §205; 1981c.178 §14]

398.414 Presumption of jurisdiction.The jurisdiction of the military courts andboards established by this chapter shall bepresumed and the burden of proof rests onany person seeking to oust those courts orboards of jurisdiction in any action or pro-ceeding. [1961 c.454 §206]

398.416 Delegation of authority byGovernor. The Governor may delegate anyauthority vested in the Governor under thischapter, and may provide for the subdele-gation of any such authority, except with re-spect to the power given the Governor byORS 398.112, 398.118 and 398.126. [1961 c.454§207; 1985 c.682 §52; 2005 c.512 §40]

398.418 Payment of expenses. The Ad-jutant General shall have authority to payall expenses incurred in the administrationof state military justice from any fund ap-propriated to the Oregon Military Depart-ment. [1985 c.682 §12; 1989 c.360 §11]

398.420 Armed Forces Court of Ap-peals for Oregon. (1) There is establishedwithin the Oregon Military Department theArmed Forces Court of Appeals for Oregon.

(2) The court shall have exclusive juris-diction over appeals properly brought underthis chapter and ORS chapters 396 and 399.

(3) The Adjutant General shall appointthree persons who shall serve as judges onthe court. The persons appointed shall servewithout compensation.

(4) One person shall be Chief Judge andtwo persons shall be Associate Judges. TheChief Judge shall be selected by the threejudges. The selection shall be subject to theapproval of the Adjutant General.

(5)(a) Appointments shall be for a termof six years, except that the initial appoint-ments of the judges shall be for the followingterms:

(A) One judge shall serve a two-yearterm.

(B) One judge shall serve a four-yearterm.

(C) One judge shall serve a six-year term.(b) The term of office of any successor

judges shall be six years, but any judge ap-pointed to fill a vacancy occurring prior tothe expiration of the term for which the



judge’s predecessor was appointed shall beappointed only for the unexpired term of thepredecessor.

(c) Any person appointed to a full orpartial term on the court, unless otherwisedisqualified, shall be eligible for reappoint-ment.

(6) A person is eligible for appointmentto the court if the person:

(a) Is a member of the Oregon State Barand admitted to practice before the highestcourt of this state;

(b) Is a former commissioned officer ofthe Armed Forces of the United States or thereserve components, or is a former or cur-rent member of the Oregon State DefenseForce; and

(c) Has at least:(A) Five years’ experience as an officer

in the Judge Advocate General’s Corps; or(B) Fifteen years’ experience in the Judge

Advocate Branch of the Oregon State De-fense Force.

(7) Judges of the court may be removedby the Adjutant General, upon notice andhearing, for neglect of duty or malfeasance

in office or for mental or physical disability,but for no other cause.

(8) If a judge of the court is temporarilyunable to perform the judge’s duties due tomental or physical disability, the AdjutantGeneral may designate another person eligi-ble for appointment to the court to fill theoffice for the period of disability.

(9) The Oregon Military Departmentshall be responsible for reimbursement andfunding of all usual travel and per diem ex-penses of the judges.

(10) The Adjutant General shall adoptregulations to govern appellate procedurebefore the court. The regulations shall besubstantially similar to the provisions forpost-trial procedure and review of courts-martial under the Uniform Code of MilitaryJustice.

(11) A party aggrieved by a decision ofthe Armed Forces Court of Appeals for Ore-gon may petition the Supreme Court of thisstate for review within 35 days after the dateof the decision, in the manner provided byrules of the Supreme Court. [2005 c.512 §29; 2009c.345 §2]


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