C.R.S. § 28-3.1-101 Short title
28-3.1-101. Short title. This article shall be known and may be cited as the "Colorado Code of Military Justice".
Colorado Code of Military Justice
C.R.S. tit. 28, art. 3.1
in effectC.R.S. § 28-3.1-102 Definitions
28-3.1-102. Definitions. As used in this article 3.1, unless the context otherwise requires:
(1) "Accuser" means any person who signs and swears to charges, any person who directs that charges be signed and sworn to by another, and any person who has an interest other than an official interest in the prosecution of the accused.
(2) Repealed.
(2.3) "Cadet" or "candidate" means a person who is enrolled in or attending a state military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned or warrant officer in the state military forces.
(2.7) "Classified information" means:
(a) Any information or material that has been determined by an official of the United States or any state pursuant to law, executive order, or regulation to require protection against unauthorized disclosure for reasons of national or state security; and
(b) Any restricted data, as defined in section 11 of the federal "Atomic Energy Act of 1954", 42 U.S.C. sec. 2014 (y).
(3) "Code" means the Colorado code of military justice.
(4) "Commanding officer" means a commissioned officer or warrant officer in a position of command, or a commissioned officer in charge when he or she is administering nonjudicial punishment pursuant to section 28-3.1-114.
(5) "Commissioned officer" means a person who holds the rank of not less than second lieutenant.
(6) "Convening authority" includes, in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command.
(6.5) "Dismissal" means a punitive separation that applies only to commissioned officers, commissioned warrant officers, candidates, and cadets and may be adjudged by a general court-martial. A dismissal may be adjudged for any offense for which a commissioned officer, commissioned warrant officer, candidate, or cadet has been found guilty.
(7) "Enlisted member" means any person who is serving in an enlisted grade.
(8) "Grade" means a step or degree in a graduated scale of office or military rank that is established by law or regulation.
(9) "Hostile force" means any person or group of persons acting in violation of the law or opposing the military force in the carrying out of its missions, including but not limited to saboteurs, rioters, and looters.
(10) "Judge advocate" means any commissioned officer who is certified by the state judge advocate general.
(10.5) "Junior enlisted" means an enlisted person holding the rank of E-1 through E-4.
(11) "Legal officer" means any commissioned officer of the state military forces designated to perform legal duties of a command.
(12) "Military" or "military forces" refers to any or all of the state military forces.
(13) "Military court" means a court-martial, a court of inquiry, or a provost court.
(14) "Military judge" means an official of general and special courts-martial detailed in accordance with section 28-3.1-210.
(14.5) "Noncommissioned officer" means an enlisted person holding the rank of E-5 through E-9.
(15) "Officer" means a commissioned or warrant officer.
(16) "Officer candidate" means a cadet of the state officer candidate school.
(17) "President" means the member of the court highest in grade and rank.
fficial of general and special courts-martial detailed in accordance with section 28-3.1-210.
(14.5) "Noncommissioned officer" means an enlisted person holding the rank of E-5 through E-9.
(15) "Officer" means a commissioned or warrant officer.
(16) "Officer candidate" means a cadet of the state officer candidate school.
(17) "President" means the member of the court highest in grade and rank.
(18) "Rank" means order of precedence among members of the state military forces.
(18.4) "Safeguard" means a detachment, guard, or detail posted by a commander for the protection of persons, places, or property of the enemy or of a neutral party affected by the relationship of belligerent forces in their prosecution of war or during circumstances amounting to a state of belligerency, including a written order left by a commander with an enemy subject or posted upon enemy property for the protection of that person or property.
(18.7) "State active duty" means all duty authorized under the constitution and laws of the state of Colorado and all training authorized under Title 32 of the United States Code, as amended.
(19) "State judge advocate general" means the judge advocate general of the state military forces, appointed pursuant to section 28-3.1-106, who is responsible for supervising the administration of military justice in the state military forces and performing such other legal duties as may be required by the adjutant general.
(20) "State military forces" means the National Guard of this state, as defined in section 28-3-101 (12), and any other militia or military forces organized under the laws of the state.
(21) "Superior commissioned officer" means a commissioned officer superior in rank of command.
(22) "Unit training assembly" means an authorized and scheduled training period of not less than four hours duration. Unit training assemblies are authorized pursuant to 32 U.S.C. sec. 502, as amended, and may be conducted with or without pay.
(23) "Warrant officer" means a person who holds the rank of warrant officer one through chief warrant officer five. These persons rank above enlisted personnel and below commissioned officers.
C.R.S. § 28-3.1-103 Persons subject to this code
28-3.1-103. Persons subject to this code. This code applies to all members of the state military forces.
C.R.S. § 28-3.1-104 Jurisdiction to try certain personnel
28-3.1-104. Jurisdiction to try certain personnel. (1) Any person discharged from the military forces who is later charged with having fraudulently obtained his or her discharge is subject to trial by court-martial on that charge and, after apprehension, shall be subject to this code while in the custody of the military for that trial. Upon conviction of that charge, he or she is subject to trial by court-martial for all offenses under this code committed before the fraudulent discharge.
(2) No person who has deserted from the military forces may be relieved from the jurisdiction of this code by virtue of a separation from any later period of service.
(3) The fact that the enlistment of any person charged with an offense under this code expires while proceedings are pending or while serving a sentence shall not affect the jurisdiction of any court-martial.
(4) Nothing in this code shall preclude applicable federal or state jurisdiction over offenses committed.
C.R.S. § 28-3.1-105 Territorial applicability of this code
28-3.1-105. Territorial applicability of this code. (1) This code applies to all persons otherwise subject to this code, either in title 32 of the United States Code, as amended, or state active duty status, while they are serving outside the state and while they are going to and returning from such service outside the state in the same manner and to the same extent as if they were serving inside the state.
(2) Courts-martial and courts of inquiry may be convened and held in units of the military forces while those units are serving outside the state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside the state. Offenses committed outside the state may be tried and punished either inside or outside the state.
(3) This code does not apply to persons serving under title 10 of the United States Code, as amended.
C.R.S. § 28-3.1-106 State judge advocate general and judge advocates
28-3.1-106. State judge advocate general and judge advocates. (1) The adjutant general shall select and appoint an officer of the military forces as state judge advocate general. To be eligible for such appointment, an officer must be a member of the bar of the state of Colorado for at least five years and must meet the additional requirements for appointment to the state staff as set forth in section 28-3-302.
(2) The adjutant general may appoint as many assistant state judge advocates as he or she considers necessary. To be eligible for appointment, assistant state judge advocates must be officers of the state military forces and members in good standing of the bar of the state of Colorado.
(3) Convening authorities shall at all times communicate directly with their staff judge advocates in matters relating to the administration of military justice. The staff judge advocate of any command is entitled to communicate directly with the staff judge advocate of a superior or subordinate command or with the state judge advocate general.
(4) No person who has acted as a member military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case or who has been a witness for either the prosecution or defense in any case may later act as staff judge advocate to any reviewing authority upon the same case.
C.R.S. § 28-3.1-107 Apprehension and restraint
28-3.1-107. Apprehension and restraint. (1) Officers, warrant officers, and enlisted members of the military forces may be placed in arrest by their military superiors upon reasonable belief that an offense in violation of this code has been committed and that the person apprehended committed such offense. An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this code or through any person authorized by this code to apprehend persons. A commanding officer may authorize warrant officers or noncommissioned officers to order enlisted members subject to his or her authority into arrest or confinement. A commissioned officer or warrant officer may be ordered apprehended or into arrest or confinement only by a commanding officer to whose authority he or she is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons apprehended or into arrest or confinement may not be delegated. No person may be ordered apprehended or into arrest or confinement except for probable cause. This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.
(2) If any member of the military forces fails or refuses to report to his or her appointed place of duty, his or her commanding officer is authorized to arrest or cause to be arrested such member and have him or her brought before the commanding officer at his or her unit or organization headquarters, whether such headquarters be located within or without the borders of the state. After such an arrest, the commanding officer is authorized to transport such member to his or her appointed place of duty, whether within or without the borders of the state. If military personnel are not available for the purpose of making the arrest, or if the commanding officer deems it advisable, he or she may issue a warrant to any peace officer authorized to serve warrants of arrest under state criminal law, and such peace officer is authorized and required to serve such warrant in the same manner as other warrants of arrest and make return thereof to the commanding officer issuing the warrant.
(3) If the commanding officer issuing the warrant is unavailable to receive the person arrested, the arresting officer shall take the person before a county court judge in the state. The judge may admit the person arrested to bail by bond, with sufficient sureties and in such sum as he or she deems proper, conditioned upon the person arrested appearing before said judge at a time specified in such bond for his or her surrender to the commanding officer issuing the warrant or to his or her representative. If the person arrested is unable to post bail, he or she shall be committed by the judge to the county jail for a period of time not to exceed three days to await surrender to the commanding officer issuing the warrant or to his or her representative.
said judge at a time specified in such bond for his or her surrender to the commanding officer issuing the warrant or to his or her representative. If the person arrested is unable to post bail, he or she shall be committed by the judge to the county jail for a period of time not to exceed three days to await surrender to the commanding officer issuing the warrant or to his or her representative.
(4) Warrants of arrest issued pursuant to this section shall be in the following form:
STATE OF ________________________)
) ss.
COUNTY OF ______________________)
To the (Sheriff), (Constable), (Chief of Police) of (Or the name and rank of the officer, First Sergeant, or N.C.O. ordered to make the arrest) of
County :
(name of individual to be arrested, rank, serial number)
a member of _________________, Colorado National Guard, having failed or refused
(unit designation)
to report to his or her appointed place of duty at __________________, you are therefore commanded forthwith to arrest the above named _________________________
(name of individual to be arrested)
and bring him or her before me at .
(unit headquarters)
The arrest is authorized to be made either during the day or at night. Dated at ____________, this ________ day of ______________, 20__.
/s/____________________________
(Type signer's name, rank, branch,
organization, and designation as
commanding officer)
(5) The fees and mileage allowed for the service of warrants of arrest issued pursuant to this section shall be the same as provided by law for the service of criminal process and shall be paid out of funds appropriated to the office of the adjutant general upon proper application therefor.
C.R.S. § 28-3.1-108 Apprehension of deserters
28-3.1-108. Apprehension of deserters. Any officer having authority to apprehend offenders under the laws of the United States or of a state, territory, commonwealth, or the District of Columbia may summarily apprehend a deserter from the military forces. If the offender is apprehended outside the state of Colorado, his or her return to Colorado must be in accordance with normal extradition procedure or reciprocal agreement.
C.R.S. § 28-3.1-109 Restraint of persons charged with offenses
28-3.1-109. Restraint of persons charged with offenses. Any person subject to this code who is charged with an offense under this code may be ordered into arrest or confinement by the convening authority, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, such person shall not ordinarily be placed in confinement. When any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him or her of the specific offense of which he or she is accused and to try him or her or to dismiss the charges and release him or her.
C.R.S. § 28-3.1-110 Confinement
28-3.1-110. Confinement. (1) Persons confined other than in a guardhouse, whether before, during, or after trial by a military court, shall be confined in a jail in the county where the offense was committed or a jail designated by the convening authority, the costs of such confinement to be paid out of funds appropriated to the office of the adjutant general.
(2) No provost marshal, commander of a guard, or master-at-arms, and no warden, sheriff, keeper, or officer of a city or county jail or any other jail, penitentiary, or prison designated under subsection (1) of this section may refuse to receive or keep any prisoner committed to his or her charge when the committing person furnishes a statement signed by him or her of the offense charged against the prisoner.
(3) Every commander of a guard, every master-at-arms, and every warden, sheriff, keeper, or officer of a city or county jail or of any other jail, penitentiary, or prison designated under subsection (1) of this section to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as he or she is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against him or her, and the name of the person who ordered or authorized the commitment.
C.R.S. § 28-3.1-111 Confinement with enemy prisoners prohibited
28-3.1-111. Confinement with enemy prisoners prohibited. No member of the military forces may be placed in confinement in immediate association with enemy prisoners.
C.R.S. § 28-3.1-112 Punishment prohibited before trial
28-3.1-112. Punishment prohibited before trial. Subject to section 28-3.1-403, no person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against such person, nor shall the arrest or confinement imposed upon such person be any more rigorous than the circumstances require to insure his or her presence. However, such person may be subjected to minor punishment during that period for infractions of discipline.
C.R.S. § 28-3.1-113 Delivery of offenders to civil authorities
28-3.1-113. Delivery of offenders to civil authorities. (1) Under such regulations as are prescribed under this code, a person subject to this code who is on state active duty who is accused of any offense against civil authority may be delivered, upon request, to the civil authority for trial.
(2) When delivery under this section is made to any civil authority of a person undergoing sentence of a court-martial and the delivery interrupts the execution of the sentence of the court-martial, the offender after having answered to the civil authorities for his or her offense shall, upon the request of competent military authority, be returned to military custody for the completion of his or her sentence.
C.R.S. § 28-3.1-114 Commanding officer's nonjudicial punishment
28-3.1-114. Commanding officer's nonjudicial punishment. (1) Punishment may be imposed for any offense cognizable by a court-martial upon any member of the state military forces under this section. Under such regulations as the governor may prescribe, limitations may be placed on the powers granted by this section with respect to the kind and amount of punishment authorized and the levels of commanding officers and warrant officers exercising command authorized to exercise those powers. If authorized by regulations of the governor, the governor or an officer of general rank in command may delegate his or her powers under this section to a principal assistant. If subject to disciplinary punishment, the accused must be afforded the opportunity to be represented by defense counsel having the qualifications prescribed under section 28-3.1-102 (10), if available. Otherwise, the accused must be afforded the opportunity to be represented by any available commissioned officer of his or her choice. The accused may also employ civilian counsel of his or her own choosing at his or her own expense. In all proceedings, the accused is allowed three duty days, or longer on written justification, to reply to the notification of intent to impose punishment under this section.
(2) Subject to subsection (1) of this section, any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments without the intervention of a court-martial:
(a) Upon an officer of his or her command:
(I) Withholding of privileges for not more than two weeks, which need not be consecutive;
(II) Restriction to certain specified limits, with or without suspension from duty, for not more than two weeks, which need not be consecutive;
(III) If imposed by the governor, the adjutant general, or a commanding officer of the Army or National Guard, a fine or forfeiture of pay and allowance of not more than the amount of pay and allowance received for two unit training assemblies or two days of annual training, whichever is applicable according to duty status;
(IV) An admonition; or
(V) A reprimand;
(b) Upon other military personnel of his or her command:
(I) Withholding of privileges for not more than two weeks, which need not be consecutive;
(II) Restriction to certain specified limits, with or without suspension from duty, for not more than two weeks, which need not be consecutive;
(III) Extra duties for not more than fourteen days, which need not be consecutive, and for not more than two hours per day, holidays included;
(IV) Reduction to next inferior grade if the grade from which he or she was demoted was established by the command or an equivalent or lower command; or
(V) A fine of any amount up to the maximum pay and allowances received for two unit training assemblies or two days of annual training, whichever is applicable according to duty status.
(2.5) If the commanding officer is of field grade, grade of O-4 or rank of major or above, he or she may impose on an enlisted member any one or a combination of the following disciplinary punishments without the intervention of a court-martial:
(a) Any of the punishments stated in subsections (2)(b)(I) to (2)(b)(III) of this section;
(b) A fine of any amount up to the maximum pay and allowances received for two unit training assemblies or two days of annual training, whichever is applicable according to duty status;
ed member any one or a combination of the following disciplinary punishments without the intervention of a court-martial:
(a) Any of the punishments stated in subsections (2)(b)(I) to (2)(b)(III) of this section;
(b) A fine of any amount up to the maximum pay and allowances received for two unit training assemblies or two days of annual training, whichever is applicable according to duty status;
(c) Reduction to the lowest or any intermediate pay grade, if the current grade from which he or she is demoted is within the promotion authority of the officer imposing the reduction or an officer subordinate to the one imposing the reduction, but enlisted members in military grades above E-4 may not be reduced by more than two military grades.
(3) The governor may, by regulation, place limitations on the powers granted by this section with respect to the kind and amount of punishment authorized and the levels of commanding officers and warrant officers exercising command authorized to exercise those powers.
(4) An officer in charge may, for minor offenses, impose on enlisted members assigned to the unit of which he or she is in charge, the punishments authorized to be imposed by commanding officers.
(4.4) Maximum allowable punishments of withholding of privileges, restrictions, and extra duties may not be combined to run consecutively.
(4.7) The officer who imposes the punishment pursuant to this section, or the successor in command, may, at any time, suspend, set aside, mitigate, or remit any part or amount of the punishment and restore all rights, privileges, and property affected. The officer also may:
(a) Mitigate reduction in grade to forfeiture of pay;
(b) Mitigate arrest in quarters to restriction; or
(c) Mitigate extra duties to restriction.
(5) Except where punishment has been imposed by the governor, a person punished under this section who considers such punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The officer who imposes the punishment, his or her successor in command, and superior authority may suspend, set aside, or remit any part or amount of the punishment and restore all rights, privileges, and property affected.
(6) The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission and not properly punishable under this section; but the fact that disciplinary punishment has been enforced may be shown by the accused upon trial and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.
(7) Whenever a punishment of forfeiture of pay and allowances is imposed under this section, the forfeiture may apply to pay or allowances accruing on and after the date that punishment is imposed and to pay and allowances accrued before that date.
C.R.S. § 28-3.1-201 Courts-martial - jurisdiction - composition
28-3.1-201. Courts-martial - jurisdiction - composition. (1) In the military forces general, special, and summary courts-martial shall be constituted like similar courts of the armed forces of the United States. They shall have the jurisdiction and powers, except as to punishment, of a similar court of the armed forces of the United States and shall follow the forms and procedures provided by those courts.
(2) The three kinds of courts-martial are:
(a) General courts-martial, consisting of a military judge and not less than five members, or consisting of only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests in writing a court composed only of a military judge and the military judge approves;
(b) Special courts-martial, consisting of a military judge and not less than three members, or consisting of only a military judge if the accused so requests under the same conditions as those prescribed in paragraph (a) of this subsection (2);
(c) Summary courts-martial, consisting of one commissioned officer.
C.R.S. § 28-3.1-202 Complete record of proceedings and testimony - when required
28-3.1-202. Complete record of proceedings and testimony - when required. A dishonorable discharge or dismissal may not be adjudged unless a verbatim record of the proceedings and testimony before the court has been made.
C.R.S. § 28-3.1-203 Jurisdiction of general courts-martial
28-3.1-203. Jurisdiction of general courts-martial. (1) General courts-martial have jurisdiction to try persons subject to this code for any offense punishable under this code and may adjudge any of the following punishments:
(a) Confinement for not more than two years, unless otherwise specified in this code;
(b) A fine of any amount up to the maximum pay and allowances received for eight unit training assemblies or eight days of annual training, whichever is applicable according to duty status;
(c) Forfeiture of pay and allowances of any amount up to the maximum pay received for eight unit training assemblies or eight days of annual training, whichever is applicable according to duty status;
(d) A reprimand;
(e) Dismissal or dishonorable discharge;
(f) Reduction of a noncommissioned officer to any inferior grade; or
(g) Any combination of these punishments.
C.R.S. § 28-3.1-204 Jurisdiction of special courts-martial
28-3.1-204. Jurisdiction of special courts-martial. Special courts-martial have jurisdiction to try any person subject to this code for any offense punishable under this code. A special court-martial has the same powers of punishment as a general court-martial; except that confinement may not be more than ninety days and the fine or forfeiture of pay and allowances imposed by a special court-martial may not be more than the maximum pay and allowances received for six unit training assemblies or six days of annual training, whichever is applicable according to duty status.
C.R.S. § 28-3.1-205 Jurisdiction of summary courts-martial
28-3.1-205. Jurisdiction of summary courts-martial. (1) Summary courts-martial have jurisdiction to try any person subject to this code, except commissioned officers, warrant officers, cadets, and candidates, for any offense made punishable under this code.
(2) and (3) (Deleted by amendment, L. 2018.)
(4) A summary court-martial may adjudge any of the following punishments:
(a) Confinement for not more than thirty days;
(b) A fine of any amount up to the maximum pay received for four unit training assemblies or four days of annual training, whichever is applicable according to duty status;
(c) Forfeiture of pay and allowances of any amount up to the maximum pay received for four unit training assemblies or four days of annual training, whichever is applicable according to duty status;
(d) Reduction of an enlisted person to any inferior grade; or
(e) Any combination of these punishments.
C.R.S. § 28-3.1-206 Who may convene general courts-martial
28-3.1-206. Who may convene general courts-martial. General courts-martial may be convened by the governor; the adjutant general for the Colorado National Guard; any general officer in the position of the assistant adjutant general for the Colorado Army National Guard; the assistant adjutant general for the Colorado Air National Guard; the assistant adjutant general for the space, cyber, and missile defense for the Colorado National Guard; the land component commander for the Colorado Army National Guard; or the wing commander for the Colorado Air National Guard.
C.R.S. § 28-3.1-207 Who may convene special courts-martial
28-3.1-207. Who may convene special courts-martial. The commanding officer of a garrison, fort, post, camp, air base, or other place where members of the military forces are on duty or of a division, brigade, regiment, wing, group, detached battalion, separate squadron, or any group of detached units placed under a command for this purpose may convene special courts-martial. In the Colorado Army National Guard, special courts-martial convening authorities include any officer with the grade of O-6 or rank of colonel serving as the commander of a major subordinate command. In the Colorado Air National Guard, special courts-martial convening authorities include group commanders. Special courts-martial may also be convened by superior authority. When any such commanding officer is an accuser, the court shall be convened by superior authority.
C.R.S. § 28-3.1-208 Who may convene summary courts-martial
28-3.1-208. Who may convene summary courts-martial. (1) The commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where members of the military forces are on duty or of a division, brigade, regiment, wing, group, battalion, squadron, company, or other detachment may convene a summary court-martial consisting of one commissioned officer. The proceedings shall be informal.
(2) When only one commissioned officer is present with a command or detachment, he or she shall be the summary court-martial of that command or detachment and shall hear and determine all summary courts-martial cases brought before him or her. Summary courts-martial may, however, be convened in any case by superior authority.
C.R.S. § 28-3.1-209 Who may serve on courts-martial
28-3.1-209. Who may serve on courts-martial. (1) Any commissioned officer off or on duty with the military forces is eligible to serve on all courts-martial for the trial of any person subject to this code.
(2) Any warrant officer off or on duty with the military forces is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer.
(3) (a) Any enlisted member of the military forces who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member, but he or she shall serve as a member of a court only if, before convening of the court, the accused personally has requested in writing that enlisted members serve on it. After such request, the accused shall not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible members cannot be obtained because of physical conditions or military exigencies. If enlisted members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why enlisted members could not be obtained.
(b) As used in this section, "unit" means any regularly organized body of the military forces not larger than a company, a squadron, or a body corresponding to one of them.
(4) (a) No person subject to this code may be tried by a court-martial of which any member is junior to him or her in rank or grade, unless it cannot be avoided and then only by order of the governor.
(b) When convening a court-martial, the convening authority shall detail as members thereof those persons as, in his or her opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member is eligible to serve as a member of a general or special court-martial when he or she is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case. If within the command of the convening authority there is present and not otherwise disqualified a commissioned officer who is a member in good standing of the bar of this state and of appropriate rank and grade, the convening authority may appoint him or her as president of a general or special court-martial.
C.R.S. § 28-3.1-210 Military judge of a general or special court-martial
28-3.1-210. Military judge of a general or special court-martial. (1) (a) The authority convening a general or special court-martial shall request the state judge advocate general to detail as military judge thereof a commissioned officer who is a member in good standing of the bar of this state. No person is eligible to act as military judge in a case if he or she is the accuser or witness for the prosecution or has acted as investigating officer or as counsel in the same case.
(b) A military judge may be detailed to a court-martial irrespective of military branch when permitted by the state judge advocate.
(2) The military judge may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, nor may he or she vote with the members of the court.
C.R.S. § 28-3.1-211 Detail of trial and defense counsel
28-3.1-211. Detail of trial and defense counsel. (1) For each general or special court-martial, the authority convening the court shall request the state judge advocate general to detail trial counsel and defense counsel and assistants as he or she considers appropriate. No person who has acted as investigating officer, military judge, or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.
(2) Trial counsel and defense counsel for a general or special court-martial must be members in good standing of the bar of this state and judge advocates appointed pursuant to section 28-3.1-106 (2).
C.R.S. § 28-3.1-212 Detail or employment of reporters and interpreters
28-3.1-212. Detail or employment of reporters and interpreters. The convening authority of a general court-martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of testimony taken before that court or, in the alternative, may utilize sound recording equipment. The convening authority of a special court-martial may detail or employ qualified court reporters who shall record the proceedings of testimony taken before that court. The convening authority of a military court may appoint interpreters who shall interpret for the court.
C.R.S. § 28-3.1-213 Absent and additional members
28-3.1-213. Absent and additional members. (1) No member of a general or special court-martial may be absent or excused after the accused has been arraigned except for physical disability or as the result of a challenge or by order of the convening authority for good cause.
(2) Whenever a general court-martial is reduced below five members, the trial may not proceed unless the convening authority appoints new members sufficient in number to provide not less than five members. When the new members have been sworn, the trial may proceed after the recorded testimony of each witness previously examined has been read to the court in the presence of the military judge, the accused, and counsel.
(3) Whenever a special court-martial is reduced below three members, the trial may not proceed unless the convening authority appoints new members sufficient in number to provide not less than three members. When the new members have been sworn, the trial may proceed as if no evidence has previously been introduced, unless a verbatim record of the testimony of previously examined witnesses or a stipulation thereof is read to the court in the presence of the accused and counsel.
C.R.S. § 28-3.1-214 Charges and specifications
28-3.1-214. Charges and specifications. (1) Charges and specifications shall be signed by an accuser subject to this code, under oath, before a commissioned officer of the state military force authorized to administer oaths and shall state:
(a) That the signer has personal knowledge of, or has investigated, the matters set forth therein; and
(b) That they are true in fact to the best of his or her knowledge and belief.
(2) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the accused shall be informed of the charges against him or her as soon as practicable.
C.R.S. § 28-3.1-215 Compulsory self-incrimination prohibited
28-3.1-215. Compulsory self-incrimination prohibited. (1) No person subject to this code shall compel any person to incriminate himself or herself or to answer any question, the answer to which may tend to incriminate him or her.
(2) No person subject to this code may interrogate or request any statement from an accused or a person suspected of an offense without first informing the person of the nature of the accusation and advising the person that he or she does not have to make any statement regarding the offense of which he or she is accused or suspected, that any statement made by the person may be used as evidence against him or her in a trial by court-martial, that the person has a right to consult with a lawyer, that the person has a right to have a lawyer, and that upon the person's request a lawyer will be provided him or her without cost or, if the person prefers, he or she may retain counsel of his or her choice at his or her own expense.
(3) No person subject to this code may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade the person compelled.
(4) No statement obtained from any person in violation of this section or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against such person in a trial by court-martial.
(5) The requirements of this section are binding on all persons administering this code, but failure to follow them shall not divest a military court of jurisdiction.
C.R.S. § 28-3.1-216 Investigation
28-3.1-216. Investigation. (1) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
(2) The accused shall be advised of the charges against him or her and of his or her right to be represented by civilian counsel if provided by him or her, or by military counsel of his or her own selection if such counsel is reasonably available, or by counsel detailed by the state judge advocate. At that investigation, full opportunity shall be given to the accused to cross-examine witnesses against him or her if they are available and to present anything he or she may desire in his or her own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides, and a copy thereof shall be given to the accused.
(3) If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (2) of this section, no further investigation of that charge is necessary under this section, unless it is demanded by the accused after he or she is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his or her own behalf.
(4) The requirements of this section are binding on all persons administering this code, but failure to follow them shall not divest a military court of jurisdiction.
C.R.S. § 28-3.1-217 Forwarding of charges
28-3.1-217. Forwarding of charges. When a person is held for trial by general court-martial, the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, the commanding officer shall report in writing to that officer the reasons for delay.
C.R.S. § 28-3.1-218 Advice of state judge advocate and reference for trial
28-3.1-218. Advice of state judge advocate and reference for trial. (1) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to the state judge advocate general for consideration and advice. The convening authority may not refer a charge to a general court-martial for trial unless he or she has found that the charge alleges an offense under this code and is warranted by evidence indicated in the report of the investigation.
(2) If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections and changes in the charges and specifications needed to make them conform to the evidence may be made.
C.R.S. § 28-3.1-219 Service of charges
28-3.1-219. Service of charges. The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. No person shall, against his or her objection, be brought to trial or be required to participate by himself or herself or by counsel in a session called by the military judge under section 28-3.1-304 before a general court-martial within five days after the service of the charges upon him or her, or before a special court-martial within three days after the service of the charges upon him or her.
C.R.S. § 28-3.1-301 General procedures
28-3.1-301. General procedures. The procedure, including modes of proof, in cases before military courts and other military tribunals, may be prescribed by the governor by regulation and shall so far as practicable be the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the courts of Colorado and in the trial of courts-martial of the United States, but such procedure may not be contrary to or inconsistent with this code.
C.R.S. § 28-3.1-302 Unlawfully influencing action of court
28-3.1-302. Unlawfully influencing action of court. (1) No authority convening a general, special, or summary court-martial, nor any other commanding officer or officer serving on the staff thereof, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court or with respect to any other exercise of their functions in the conduct of the proceeding. No person subject to this code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to his or her judicial acts. The provisions of this subsection (1) shall not apply to general instructional or informational courses in military justice, if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or to statements and instructions given in open court by the military judge or counsel.
(2) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the state military forces should be retained on duty, no person subject to this code may, in preparing any such report:
(a) Consider or evaluate the performance of duty of any such member as a member, military judge, or trial counsel of a court-martial; except that this paragraph (a) is not applicable to evaluations made by the state judge advocate of the performance of personnel under his or her supervision;
(b) Give a less favorable rating or evaluation of any member of the military forces because of the zeal with which such member as counsel represented any accused before a court-martial.
C.R.S. § 28-3.1-303 Duties of trial counsel and defense counsel
28-3.1-303. Duties of trial counsel and defense counsel. (1) The trial counsel of a general or special court-martial shall prosecute in the name of the state and shall, under the direction of the court, prepare the record of proceedings.
(2) The accused has the right to be represented in his or her defense before a general or special court-martial by civilian counsel if provided by him or her, or by military counsel of his or her own selection if reasonably available, or by the defense counsel detailed under section 28-3.1-211. If the accused has counsel of his or her own selection, the defense counsel and assistant defense counsel, if any, who were detailed shall, if the accused so desires, act as his or her associate counsel; otherwise they shall be excused by the military judge.
(3) In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of the matters he or she feels should be considered in behalf of the accused on review, including any objection to the contents of the record which he or she considers appropriate.
(4) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he or she is qualified to be a trial counsel as required by section 28-3.1-211, perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.
(5) An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when he or she is qualified to be the defense counsel as required by section 28-3.1-211, perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.
C.R.S. § 28-3.1-304 Sessions
28-3.1-304. Sessions. (1) (a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may call the court into session without the presence of the members for:
(I) Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
(II) Hearing and ruling upon any matter which may be ruled upon by the military judge, whether or not the matter is appropriate for later consideration or decision by the members of the court;
(III) If permitted by the regulations of the governor, holding the arraignment and receiving the pleas of the accused; or
(IV) Performing any other procedural function which may be performed by the military judge pursuant to section 28-3.1-301 which does not require the presence of the members of the court.
(b) These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made part of the record.
(2) Whenever a general or special court-martial deliberates or votes, only the members of the court may be present. All other proceedings, including any consultation of the court with counsel or the military judge, shall be made part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.
(3) Trial counsel, in the name of the state of Colorado, may file an interlocutory appeal in the supreme court of the state of Colorado from a ruling of the military judge granting a motion made by the accused in advance of trial for the return of property, the suppression of evidence, or the suppression of an extrajudicial confession or admission if trial counsel certifies to the military judge who granted the motion that the interlocutory appeal is not taken for the purpose of delay and said property or evidence is a substantial part of the proof of a charge pending against the accused.
C.R.S. § 28-3.1-305 Continuances
28-3.1-305. Continuances. The military judge or a court-martial without a military judge may for reasonable cause grant a continuance to any party for such time and as often as appears just.
C.R.S. § 28-3.1-306 Challenges
28-3.1-306. Challenges. (1) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.
(2) Both the accused and the trial counsel are entitled to one preemptory challenge, but the military judge may not be challenged except for cause.
C.R.S. § 28-3.1-307 Oaths
28-3.1-307. Oaths. (1) Interpreters and, in general and special courts-martial, members, military judges, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, and reporters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully.
(2) Each witness before a military court shall be examined on oath or affirmation.
C.R.S. § 28-3.1-308 Statute of limitations
28-3.1-308. Statute of limitations. (1) A person charged with any offense under the code is not liable to be tried by court-martial or punished under section 28-3.1-114, if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 28-3.1-114.
(2) Notwithstanding the provisions of subsection (1) of this section, a prosecution for larceny and wrongful appropriation under section 28-3.1-538, against one who obtained property lawfully and subsequently misappropriated it, may be commenced within one year after discovery of the loss, but in no case shall this extend the time limitation by more than five years.
(3) Periods in which the accused was absent from territory in which the state has authority to apprehend him or her, or in the custody of civil authorities, or in the hands of the enemy of any hostile force shall be excluded in computing the period of limitation prescribed in this section.
(4) A person charged with desertion or absence without leave in time of national emergency or war, or with aiding the enemy, or with mutiny may be tried and punished at any time without limitation.
(5) Except as otherwise provided in this section, a person charged with desertion in time of peace or with the offenses punishable under section 28-3.1-535, 28-3.1-536, or 28-3.1-537 is not liable to be tried by court-martial if the offense was committed more than three years before the receipt of sworn charges and specification.
C.R.S. § 28-3.1-309 Former jeopardy
28-3.1-309. Former jeopardy. (1) No person may be tried a second time in any military court for the same offense.
(2) No proceeding in which an accused has been found guilty by a court-martial upon any charges or specification is a trial for purposes of this section until the finding of guilty has become final after review of the case has been fully completed.
(3) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial for purposes of this section.
C.R.S. § 28-3.1-310 Pleas of the accused
28-3.1-310. Pleas of the accused. (1) If an accused, after arraignment, makes an irregular pleading or, after a plea of guilty, sets up matter inconsistent with the plea, or if it appears that an accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if an accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he or she had pleaded not guilty.
(2) With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may, if permitted by the regulations of the governor, be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to the announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.
C.R.S. § 28-3.1-311 Opportunity to obtain witnesses and other evidence
28-3.1-311. Opportunity to obtain witnesses and other evidence. (1) The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with regulations the governor prescribes.
(2) The military judge of a court-martial or a summary court-martial may:
(a) Issue a warrant for the arrest of any accused person who, having been served with a warrant and a copy of the charges, disobeys a written order by the convening authority to appear before the court;
(b) Issue subpoenas duces tecum and other subpoenas;
(c) Enforce the attendance of witnesses and the production of books and papers.
C.R.S. § 28-3.1-312 Refusal to appear or testify
28-3.1-312. Refusal to appear or testify. (1) Any person not subject to this code who has been subpoenaed to appear as a witness or to produce books and records before a military court or before a military or civil officer designated to take a deposition to be read in evidence before such a court and who willfully neglects or refuses to appear, refuses to qualify as a witness, refuses to testify, or refuses to produce any evidence commits a petty offense and shall be punished as provided in section 18-1.3-503.
(2) Upon the certification of the facts in subsection (1) of this section by the military court or tribunal to the district attorney of the county where the offense occurred, the district attorney shall prosecute the accused in any court of record, and jurisdiction is hereby conferred upon such courts for this purpose.
C.R.S. § 28-3.1-313 Contempt
28-3.1-313. Contempt. A military court may punish for contempt any person who willfully and unlawfully refuses to be sworn as a witness, or who refuses to answer any legal or proper question, or who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by a riot or disorder. The punishment shall not exceed confinement for thirty days or a fine of one hundred dollars, or both.
C.R.S. § 28-3.1-314 Depositions
28-3.1-314. Depositions. (1) At any time after charges have been signed as provided in section 28-3.1-214, any party may take oral or written depositions, unless an authority competent to convene a court-martial for the trial of those charges forbids such depositions for good cause. If a deposition is to be taken before charges are referred for trial, such authority shall designate lawyers to represent the prosecution and the defense.
(2) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.
(3) Depositions shall be taken and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths.
(4) An authenticated deposition taken upon reasonable notice to the other parties, if otherwise admissible under the rules of evidence, may be used in evidence before any court-martial or in any proceeding before a court of inquiry.
C.R.S. § 28-3.1-315 Admissibility of records of courts of inquiry
28-3.1-315. Admissibility of records of courts of inquiry. Records of courts of inquiry are not admissible as evidence in any court-martial.
C.R.S. § 28-3.1-316 Voting and rulings
28-3.1-316. Voting and rulings. (1) Voting by members of a general or special court-martial on questions of challenge, on the findings, and on the sentence shall be by secret written ballot. The junior member in rank of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.
(2) The military judge of a general or special court-martial shall rule upon interlocutory questions, other than a challenge, arising during the proceedings. Any ruling made by the military judge upon any interlocutory question, other than a motion for a finding of not guilty or the question of the accused's sanity, is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial; except that he or she may not change a ruling on a motion for a finding of not guilty that was granted. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 28-3.1-317, beginning with the junior member in rank.
(3) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the court as to the elements of the offense and charge the court:
(a) That the accused must be presumed to be innocent until his or her guilt is established by legal and competent evidence beyond reasonable doubt;
(b) That, in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he or she must be acquitted;
(c) That, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
(d) That the burden of proof of establishing the guilt of the accused beyond reasonable doubt is upon the prosecution.
(4) The provisions of subsections (1), (2), and (3) of this section shall not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum decision is filed, it shall be sufficient if the findings of fact appear therein.
C.R.S. § 28-3.1-317 Number of votes required
28-3.1-317. Number of votes required. (1) No person may be convicted of an offense except by the unanimous concurrence of the members present at the time the vote is taken.
(2) All sentences shall be determined by the vote of two-thirds of the members present at the time the vote is taken.
(3) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.
C.R.S. § 28-3.1-318 Court to announce action
28-3.1-318. Court to announce action. A court-martial shall announce its findings and sentence to the parties as soon as determined.
C.R.S. § 28-3.1-319 Record of trial
28-3.1-319. Record of trial. General and special courts-martial shall keep a verbatim record of the trial of each case. Upon a request of the accused, a reviewing authority, or the state judge advocate general, the record shall be transcribed and authenticated by the president or the military judge. If the record cannot be authenticated by either the president or the military judge by reason of his or her death, disability, or absence, it shall be authenticated by two members of the court. In all other courts-martial, records of trial shall contain such matter and be authenticated in such manner as the governor prescribes by regulation.
C.R.S. § 28-3.1-401 Cruel and unusual punishments prohibited
28-3.1-401. Cruel and unusual punishments prohibited. Cruel and unusual punishment may not be adjudged by any court-martial or inflicted upon any person subject to this code.
C.R.S. § 28-3.1-402 Maximum limits
28-3.1-402. Maximum limits. The punishment which a court-martial may direct for an offense shall not exceed limits prescribed by this code.
C.R.S. § 28-3.1-402.5 Classification of offenses
28-3.1-402.5. Classification of offenses. A conviction by general court-martial of any military offense for which an accused received a sentence greater than one year of confinement or a conviction by a general court-martial of any offense that, at the time the offense was committed, carries a maximum term of confinement of three years or greater as set forth under 10 U.S.C. sec. 877 to 10 U.S.C. sec. 934, as amended, or pursuant to an executive order, is a felony offense. Except for convictions by a summary court-martial, all other military offenses are misdemeanors. Any conviction by a special court-martial is a misdemeanor. Any conviction by a summary court-martial is not a criminal conviction.
C.R.S. § 28-3.1-403 Effective date of sentences
28-3.1-403. Effective date of sentences. (1) Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances, in addition to confinement not suspended, the forfeiture may apply to pay and allowances becoming due before or after the date the sentence is approved by the convening authority.
(2) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended shall be excluded in computing the service of the terms of confinement.
(3) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under his or her jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in his or her sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under his or her jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.
(4) All other sentences of court-martial are effective on the date ordered executed. In no case may a sentence be executed until final action is taken on review.
(5) In the militia or state military forces not in federal service, no sentence of dismissal or dishonorable discharge may be executed until it is approved by the governor.
(6) Notwithstanding subsection (3) of this section, unless waived by the accused, an officer exercising summary court-martial jurisdiction shall defer service of a sentence to confinement pursuant to section 28-3.1-205 (4)(a), pending the conclusion of any appeal following review and approval pursuant to section 28-3.1-420.
C.R.S. § 28-3.1-404 Execution of confinement
28-3.1-404. Execution of confinement. (1) A sentence of confinement adjudged by a military court may be carried into execution by confinement in any place of confinement under the control of any of the forces of the state military forces or in any jail, penitentiary, or prison designated for that purpose. Persons so confined in a jail, penitentiary, or prison are subject to the same discipline and treatment as persons confined or committed to the jail, penitentiary, or prison by the courts of the state.
(2) The omission of the words "hard labor" from any sentence or punishment of a court-martial adjudging confinement does not deprive the authority executing that sentence or punishment of the power to require hard labor as a part of the punishment.
(3) The keepers, sheriffs, officers, and wardens of city or county jails and of all other jails, penitentiaries, or prisons designated by the convening authority shall receive persons ordered into confinement before trial or persons committed to confinement by a military court and shall confine them according to law.
C.R.S. § 28-3.1-405 Commitment under sentence of confinement
28-3.1-405. Commitment under sentence of confinement. When a sentence of confinement is imposed to be served other than in a guardhouse, the convening authority shall issue a writ in the following or similar form:
STATE OF ________________________)
) ss.
________ COUNTY OF______________)
To the Sheriff of County, , State of Colorado.
WHEREAS, of in the County of , a member of the Colorado National Guard, was on the day of , 20 , tried by court-martial and found guilty of in violation of the Colorado Military Code and was sentenced to serve days imprisonment; and
WHEREAS, as such sentence was approved and ordered executed by the convening authority, on the day of , 20 ;
THEREFORE, you were commanded to take the body of the said and commit him or her to the keeper of the jail, who is hereby commanded to receive the body of the said and keep him or her safely for the term of days, after which he or she shall be released.
Fail not, but do as herein commanded and make a return within sixty (60) days from this date.
Dated at , in the County of this day of , 20 .
C.R.S. § 28-3.1-406 Collection of fines
28-3.1-406. Collection of fines. (1) All fines imposed as a sentence of a court-martial shall be paid at the time of approval of the sentence by the convening authority.
(2) The commitment to the county jail for nonpayment of fines shall be in the following or similar form:
STATE OF ________________________)
) ss.
________ COUNTY OF______________)
To the Sheriff of County , State of Colorado.
WHEREAS, of in the County of , a member of the Colorado National Guard, was on the day of , 20 , tried by court-martial and found guilty of in violation of the Colorado Military Code and was sentenced to pay a fine of Dollars; and
WHEREAS, such fine has not been paid;
NOW, THEREFORE, by authority of the State of Colorado, you are hereby commanded to take the body of the said and commit it to the keeper of the jail in the County of , who is hereby commanded to receive the body of the said and keep him or her safely until he or she pays the sum above mentioned, or shall have served one (1) day for each dollar of said fine, after which time he or she shall be released.
Fail not, but make service and return within sixty (60) days from this date.
Dated at , in the County of this day of , 20 .
___________________
C.R.S. § 28-3.1-407 Initial action on the record
28-3.1-407. Initial action on the record. After a trial by court-martial, the record shall be forwarded to the convening authority, as reviewing authority, and action thereon may be taken by the person who convened the court, a commissioned officer commanding for the time being, a successor in command, or the governor. The reviewer may approve the sentence or such part, amount, or commuted form of the sentence as he or she sees fit and may suspend or defer the execution of the sentence.
C.R.S. § 28-3.1-408 Reconsideration and revision
28-3.1-408. Reconsideration and revision. (1) If a specification before a court-martial has been dismissed on motion and the ruling does not amount to a finding of not guilty, the convening authority may return the record to the court for reconsideration of the ruling and any further appropriate action.
(2) (a) Where there is an apparent error or omission in the record, or where the record shows improper or inconsistent action by a court-martial with respect to a finding or sentence which can be rectified without material prejudice to the substantial rights of the accused, the convening authority may return the record to the court for appropriate action.
(b) In no case, however, may the record be returned:
(I) For reconsideration of a finding of not guilty or a ruling which amounts to a finding of not guilty; or
(II) For reconsideration of a finding of not guilty of any charge, unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of the code; or
(III) For increasing the severity of the sentence, unless the sentence prescribed for the offense is mandatory.
C.R.S. § 28-3.1-409 Rehearings
28-3.1-409. Rehearings. (1) If the convening authority disapproves the findings and sentence of a court-martial, he or she may, except where there is lack of sufficient evidence in the record to support the findings, order a rehearing. In such a case, he or she shall state the reasons for disapproval. If he or she disapproves the findings and sentence and does not order a rehearing, he or she shall dismiss the charges.
(2) Each rehearing shall take place before a court-martial whose composition shall not include any member or military judge of the court-martial which first heard the case. Upon a rehearing, the accused may not be tried for any offense of which he or she was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be imposed unless the sentence is based upon a finding of guilty of an offense considered upon the merits in the original proceedings or unless the sentence prescribed for the offense is mandatory.
C.R.S. § 28-3.1-410 Approval by the convening authority
28-3.1-410. Approval by the convening authority. In acting on the findings and sentence of a court-martial, the convening authority may approve only those findings and the sentence or part or amount of the sentence which he or she finds correct in law and fact. Unless he or she indicates otherwise, approval of the sentence is approval of the findings and sentence.
C.R.S. § 28-3.1-411 Review of records - disposition
28-3.1-411. Review of records - disposition. (1) If the convening authority is the governor, he or she shall refer the record of courts-martial to the state judge advocate general who shall submit his or her written opinion to the governor. If the final action of the court has resulted in acquittal of all charges and specifications, the opinion shall be limited to questions of jurisdiction. After consideration of the opinion, the governor's action on review of any record is final.
(2) (a) Except as provided in subsection (1) of this section, the convening authority shall refer the record of a general court-martial to the staff judge advocate designated by the state judge advocate general who shall submit his or her written opinion to the convening authority. If the final action of the court has resulted in an acquittal of all charges and specifications, the opinion shall be limited to questions of jurisdiction. When the convening authority has taken final action, he or she shall forward the entire record, including his or her action thereon and the opinion of the staff judge advocate, to the state judge advocate general for review.
(b) In a case reviewable by the state judge advocate general under this section, the staff judge advocate may act only with respect to the findings and sentence as approved by the convening authority. He or she may affirm only the findings of guilty and the sentence or part or amount of the sentence which he or she finds correct in law and fact and determined on the basis of the entire record. In considering the record, he or she may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. If the staff judge advocate sets aside the findings and sentence, he or she may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If he or she sets aside the findings and sentence and does not order a rehearing, he or she shall order that the charges be dismissed.
(c) The state judge advocate general shall instruct the convening authority to act in accordance with his or her decision on the review. If he or she has ordered a rehearing, but the convening authority finds a rehearing impracticable, he or she may dismiss the charges.
(3) Except as provided in subsection (1) of this section, the convening authority of any summary or special court-martial, after taking final action on review, shall forward the entire record, including his or her action thereon, to the staff judge advocate designated by the state judge advocate general. With respect to such record, the staff judge advocate shall have the same duties and powers as provided for the state judge advocate general in paragraphs (b) and (c) of subsection (2) of this section.
(4) The state judge advocate general may order one or more boards of review, each composed of not less than three commissioned officers of the state military forces, or retired members of the military forces, or members of the United States Air Forces or United States Army reserve, each of whom must be a member of the bar of this state. Each board of review shall review the record of any trial by special court-martial referred to it by the state judge advocate general. Boards of review shall have the same authority on review as the state judge advocate general has under subsection (2) of this section.
C.R.S. § 28-3.1-412 Review counsel
28-3.1-412. Review counsel. (1) Upon the final review of a sentence of any court-martial, the accused has the right to be represented by counsel before the reviewing authority, before the staff judge advocate, and before the state judge advocate general.
(2) Upon the request of an accused, the state judge advocate general shall appoint a lawyer who is a member of the state military forces and who has the qualifications prescribed in section 28-3.1-211 if available, to represent the accused before the reviewing authority, before the staff judge advocate, and before the state judge advocate general in the review of cases specified in subsection (1) of this section.
(3) The accused may be represented by civilian counsel, provided at his or her expense, before the reviewing authority, before the staff judge advocate, and before the state judge advocate general.
C.R.S. § 28-3.1-413 Review by governor
28-3.1-413. Review by governor. Notwithstanding review procedures provided in this code, in any case where no right to review by the governor exists, the accused may, within thirty days after final action is taken by any reviewing authority, petition the governor to review such final action. The governor may take action as he or she deems appropriate. Failure of the governor to act within thirty days shall constitute a denial.
C.R.S. § 28-3.1-414 Error of law - lesser included offense
28-3.1-414. Error of law - lesser included offense. (1) A finding or sentence of a court-martial shall not be held incorrect on the ground of an error of law, unless the error materially prejudices the substantial rights of the accused.
(2) Any reviewing authority with the power to affirm a finding of guilty may affirm so much of the findings as includes a lesser included offense.
C.R.S. § 28-3.1-415 Vacation of suspension of sentence
28-3.1-415. Vacation of suspension of sentence. (1) Before the vacation of the suspension of any court-martial sentence, the officer having court-martial jurisdiction over a probationer shall hold a hearing on the alleged violation of probation. The probationer shall be represented at the hearing by counsel, if he or she so desires.
(2) The record of the hearing and the recommendation of the officer having court-martial jurisdiction shall be sent for action to the state judge advocate in cases involving a general court-martial sentence. If the state judge advocate vacates the suspension, any unexecuted part of the sentence shall be executed.
(3) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.
C.R.S. § 28-3.1-416 Petition for a new trial
28-3.1-416. Petition for a new trial. At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the governor for a new trial on grounds of newly discovered evidence or fraud on the court-martial.
C.R.S. § 28-3.1-417 Remission and suspension
28-3.1-417. Remission and suspension. (1) A convening authority may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures.
(2) The governor may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.
C.R.S. § 28-3.1-418 Restoration
28-3.1-418. Restoration. (1) Under regulations prescribed by the governor, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, may be restored, unless a new trial or rehearing is ordered and the executed part is included in a sentence imposed upon a new trial or rehearing.
(2) If a previously executed sentence of dishonorable discharge or other punitive discharge is not imposed on a new trial, the governor shall substitute a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of his or her enlistment.
(3) If a previously executed sentence of dismissal is not imposed on a new trial, the governor shall substitute a form of discharge authorized for administrative issue, and a commissioned officer dismissed by that sentence may be reappointed only by the governor to the commissioned grade and rank as that former officer would have attained had he or she not been dismissed. The reappointment of such a former officer may be made if a position vacancy is available under applicable tables of organization. All time between the dismissal and reappointment shall be considered as service for all state purposes.
C.R.S. § 28-3.1-419 Finality of proceedings, findings, and sentences
28-3.1-419. Finality of proceedings, findings, and sentences. The proceedings, findings, and sentences of courts-martial as reviewed and approved as required by this code and all dismissals and discharges carried into execution under sentences by courts-martial following review and approval as required by this code are final. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the state, subject only to action upon a petition for a new trial as provided by section 28-3.1-416 or action taken on appeal as provided by section 28-3.1-420.
C.R.S. § 28-3.1-420 Appeal following review and approval
28-3.1-420. Appeal following review and approval. (1) The accused, within thirty-five days after the date the final reviewing authority takes action, may take an appeal to the supreme court of the state of Colorado pursuant to the Colorado appellate rules.
(2) When the accused petitions the governor pursuant to section 28-3.1-413 to review the final action of the reviewing authority, the time for filing notice of appeal is extended until thirty-five days after the governor announces his or her action or the petition is denied due to the governor's failure to act. No action or failure to act by the governor shall form the basis for appeal, nor shall the supreme court order review by the governor.
C.R.S. § 28-3.1-421 Appeal by the state
28-3.1-421. Appeal by the state. (1) In a trial by court-martial or in a trial by military judge only pursuant to section 28-3.1-316 (4) in which a punitive discharge may be adjudged, the state may not appeal a finding of not guilty with respect to the charge or specification. In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal the following:
(a) An order or ruling of the military judge that terminates the proceedings with respect to a charge or specification;
(b) An order or ruling that excludes evidence that is substantial proof of a fact material in the proceeding;
(c) An order or ruling that directs the disclosure of classified information;
(d) An order or ruling that imposes sanctions for nondisclosure of classified information;
(e) A refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information; or
(f) A refusal by the military judge to enforce an order described in subsection (1)(e) of this section that has previously been issued by the appropriate authority.
(2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within seventy-two hours of the order or ruling. Such notice must include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one that excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.
(3) An appeal under this article 3.1 must be diligently prosecuted as provided by law.
(4) An appeal under this article 3.1 must be forwarded to the court prescribed in this code. In ruling on an appeal under this article 3.1, that court may act only with respect to matters of law.
(5) Any period of delay resulting from an appeal under this article 3.1 must be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.
C.R.S. § 28-3.1-501 Principal defined
28-3.1-501. Principal defined. A "principal", as used in this code, means any person punishable under this code who commits an offense punishable by this code or intentionally aids, abets, counsels, commands, solicits, or procures its commission or intentionally causes an act to be done which if directly performed by him or her would be punishable by this code.
C.R.S. § 28-3.1-502 Abetting offenders
28-3.1-502. Abetting offenders. Any person subject to this code who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his or her apprehension, trial, or punishment shall be punished as a court-martial directs.
C.R.S. § 28-3.1-503 Charges - offenses included
28-3.1-503. Charges - offenses included. An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or of an offense necessarily included therein, but not both.
C.R.S. § 28-3.1-504 Attempt to commit offense
28-3.1-504. Attempt to commit offense. (1) An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending even though failing to effect its commission, is an attempt to commit that offense.
(2) Any person subject to this code who attempts to commit any offense punishable by this code shall be punished as a court-martial directs, unless otherwise specifically prescribed.
(3) Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.
C.R.S. § 28-3.1-505 Conspiracy to commit offense
28-3.1-505. Conspiracy to commit offense. Any person subject to this code who conspires with any other person to commit an offense under this code shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial directs.
C.R.S. § 28-3.1-506 Solicitation
28-3.1-506. Solicitation. (1) Any person subject to this code who solicits or advises another to desert in violation of section 28-3.1-509 or mutiny in violation of section 28-3.1-518 shall be punished as a court-martial directs.
(2) Any person subject to this code who solicits or advises another to commit an act of misbehavior before the enemy or any hostile force in violation of section 28-3.1-523 or sedition in violation of section 28-3.1-518 shall be punished as court-martial directs.
C.R.S. § 28-3.1-507 Fraudulent enlistment, appointment, or separation
28-3.1-507. Fraudulent enlistment, appointment, or separation. (1) Any person shall be punished as a court-martial directs if he or she:
(a) Procures his or her own enlistment or appointment in the state military forces by knowingly false representation or deliberate concealment as to his or her qualifications or medical fitness for that enlistment or appointment and receives pay or allowances thereunder; or
(b) Procures his or her own separation from the state military forces by knowingly false representation or deliberate concealment as to his or her eligibility for that separation.
C.R.S. § 28-3.1-508 Unlawful enlistment, appointment, or separation
28-3.1-508. Unlawful enlistment, appointment, or separation. Any person subject to this code who effects an enlistment or appointment in or a separation from the state military forces of any person who is known to him or her to be ineligible for such enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial directs.
C.R.S. § 28-3.1-509 Desertion
28-3.1-509. Desertion. (1) Any member of the state military forces is guilty of desertion if he or she:
(a) Without authority, goes or remains absent from his or her unit, organization, or place of duty with intent to remain away therefrom permanently; or
(b) Quits his or her unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(c) Without being regularly separated from one of the state military forces, enlists or accepts an appointment in the same or another one of the state military forces or in one of the armed forces of the United States without fully disclosing the fact that he or she has not been regularly separated.
(2) Any commissioned officer of the state military forces who, after tender of his or her resignation and before notice of its acceptance, quits his or her post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.
(3) Any person found guilty of desertion or attempt to desert shall be punished as a court-martial directs.
C.R.S. § 28-3.1-510 Absence without leave
28-3.1-510. Absence without leave. (1) Any person subject to this code shall be punished as a court-martial directs when he or she, without authority:
(a) Fails to go to his or her appointed place of duty at the time prescribed;
(b) Goes from that place; or
(c) Absents himself or herself or remains absent from his or her unit, organization, or place of duty at which he or she is required to be at the time prescribed.
C.R.S. § 28-3.1-511 Missing movement
28-3.1-511. Missing movement. Any person subject to this code who, through neglect or design, misses the movement of a ship, aircraft, or unit with which he or she is required in the course of duty to move must be punished as a court-martial directs.
C.R.S. § 28-3.1-512 Contempt toward officials
28-3.1-512. Contempt toward officials. Any person subject to this code who uses contemptuous words against the president of the United States or the governor which may detrimentally affect the morale or effectiveness of any unit of the state military forces shall be punished as a court-martial directs.
C.R.S. § 28-3.1-513 Disrespect toward superior commissioned officer
28-3.1-513. Disrespect toward superior commissioned officer. Any person subject to this code who behaves with disrespect toward his or her superior commissioned officers shall be punished as a court-martial directs.
C.R.S. § 28-3.1-514 Assaulting or willfully disobeying superior commissioned officer
28-3.1-514. Assaulting or willfully disobeying superior commissioned officer. (1) Any person subject to this code shall be punished by confinement of not more than ten years or such other punishment as a court-martial directs if he or she:
(a) Strikes his or her superior commissioned officer or draws or lifts up any weapon or offers any violence against such officer while he or she is in the execution of his or her office; or
(b) Willfully disobeys a lawful command of his or her superior commissioned officer.
C.R.S. § 28-3.1-515 Insubordinate conduct toward warrant officer or noncommissioned officer
28-3.1-515. Insubordinate conduct toward warrant officer or noncommissioned officer. (1) Any warrant officer or enlisted member shall be punished as a court-martial directs if he or she:
(a) Strikes or assaults a warrant officer or noncommissioned officer while that officer is in the execution of his or her office; or
(b) Willfully disobeys the lawful order of a warrant officer or noncommissioned officer; or
(c) Treats with contempt or is disrespectful in language or deportment toward a warrant officer or noncommissioned officer while that officer is in the execution of his or her office.
C.R.S. § 28-3.1-516 Failure to obey order or regulation
28-3.1-516. Failure to obey order or regulation. Any person subject to this code who violates or fails to obey any lawful general order or regulation, including an order to report for state active duty, or is derelict in the performance of his or her duties shall be punished as a court-martial directs.
C.R.S. § 28-3.1-517 Cruelty and maltreatment of inferiors
28-3.1-517. Cruelty and maltreatment of inferiors. Any person subject to this code who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his or her orders must be punished as a court-martial directs.
C.R.S. § 28-3.1-518 Mutiny and sedition
28-3.1-518. Mutiny and sedition. (1) Any person subject to this code who, with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his or her duty or creates any violence or disturbance is guilty of mutiny.
(2) Any such person who, with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against such authority is guilty of sedition.
(3) Any such person who fails to do his or her utmost to prevent and suppress a mutiny or sedition being committed in his or her presence or fails to take all reasonable means to inform his or her superior commissioned officer or commanding officer of a mutiny or sedition which he or she knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.
(4) Any person who is found guilty of attempted mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by confinement of not more than ten years or such other punishment as a court-martial directs.
C.R.S. § 28-3.1-519 Resisting arrest - escape from custody
28-3.1-519. Resisting arrest - escape from custody. Any person subject to this code who resists apprehension or breaks arrest or who escapes from physical restraint lawfully imposed shall be punished as a court-martial directs.
C.R.S. § 28-3.1-520 Unlawful release of prisoners
28-3.1-520. Unlawful release of prisoners. Any person subject to this code who, without proper authority, releases any prisoner committed to his or her charge or who, through neglect or design, suffers any such prisoner to escape shall be punished as a court-martial directs, whether or not the prisoner was committed in strict compliance with law.
C.R.S. § 28-3.1-521 Unlawful detention of another
28-3.1-521. Unlawful detention of another. Any person subject to this code who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial directs.
C.R.S. § 28-3.1-522 Noncompliance with procedural rules
28-3.1-522. Noncompliance with procedural rules. Any person subject to this code who is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this code or knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused shall be punished as a court-martial directs.
C.R.S. § 28-3.1-523 Misbehavior before the enemy or any hostile force
28-3.1-523. Misbehavior before the enemy or any hostile force. (1) Any person subject to this code shall be punished by confinement of not more than ten years or such other punishment as a court-martial directs when he or she, before or in the presence of the enemy or any hostile force:
(a) Runs away;
(b) Abandons, surrenders, or delivers up any command, unit, place, or military property which it is his or her duty to defend;
(c) Through disobedience, neglect, or intentional misconduct, endangers the safety of any such command, unit, place, or military property;
(d) Casts away his or her arms or ammunition;
(e) Is guilty of cowardly conduct;
(f) Quits his or her place of duty to plunder or pillage;
(g) Causes false alarms in any command, unit, or place under control of the armed forces of the United States or the state military forces;
(h) Willfully fails to do his or her utmost to encounter, engage, capture, or destroy any enemy troops, hostile forces, combatants, vessels, aircraft, or any other thing, which it is his or her duty so to encounter, engage, capture, or destroy; or
(i) Does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies or the state or to any other state, when engaged in battle.
C.R.S. § 28-3.1-524 Subordinate compelling surrender
28-3.1-524. Subordinate compelling surrender. Any person subject to this code who compels or attempts to compel the commander of any of the state military forces to surrender to an enemy or any hostile force or who strikes the colors or flag to any enemy or any hostile force without proper authority shall be punished as a court-martial directs.
C.R.S. § 28-3.1-525 Improper use of countersign
28-3.1-525. Improper use of countersign. Any person subject to this code who discloses the parole or countersign to any person not entitled to receive it, or who gives to another who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to his or her knowledge, he or she was authorized and required to give, shall be punished by confinement of not more than ten years or such other punishment as a court-martial directs.
C.R.S. § 28-3.1-526 Forcing a safeguard
28-3.1-526. Forcing a safeguard. Any person subject to this code who forces a safeguard shall be punished as a court-martial directs.
C.R.S. § 28-3.1-527 Captured or abandoned property
28-3.1-527. Captured or abandoned property. (1) All persons subject to this code shall secure all property taken from the enemy or any hostile force and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.
(2) Any person subject to this code shall be punished as a court-martial directs if he or she:
(a) Fails to carry out the duties prescribed in subsection (1) of this section;
(b) Buys, sells, trades, or in any way deals in or disposes of captured, stolen, or abandoned property whereby he or she receives or expects any profit, benefit, or advantage to himself or herself or another directly or indirectly connected with himself or herself; or
(c) Engages in looting or pillaging.
C.R.S. § 28-3.1-528 Aiding the enemy or any hostile force
28-3.1-528. Aiding the enemy or any hostile force. Any person who aids or attempts to aid the enemy or any hostile force with arms, ammunition, supplies, money, or other thing or who without proper authority knowingly harbors, or protects, or gives intelligence to, or communicates or corresponds with, or holds any intercourse with the enemy or any hostile force, either directly or indirectly, shall be punished as a court-martial directs.
C.R.S. § 28-3.1-529 Misconduct of a prisoner
28-3.1-529. Misconduct of a prisoner. (1) Any person subject to this code shall be punished as a court-martial directs when he or she, while in the hands of the enemy or any hostile force:
(a) For the purpose of securing favorable treatment by his or her captors, acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others held by the enemy or any hostile force as civilian or military prisoners; or
(b) While in a position of authority over prisoners maltreats them without justifiable cause.
C.R.S. § 28-3.1-530 Falsification of official documents
28-3.1-530. Falsification of official documents. Any person subject to this code who, with intent to deceive, signs any false record, return, regulation, order, or other official document knowing the same to be false or makes any other false official statement knowing the same to be false shall be punished as a court-martial directs.
C.R.S. § 28-3.1-531 Military property - loss, damage, destruction, or wrongful disposition
28-3.1-531. Military property - loss, damage, destruction, or wrongful disposition. Any person subject to this code who without proper authority sells or otherwise disposes of, willfully or through neglect damages, destroys, or loses, or willfully or through neglect suffers to be damaged, destroyed, sold, or wrongfully disposed of any military property of the United States or of the state shall be punished as a court-martial directs.
C.R.S. § 28-3.1-532 Waste, spoilage, or destruction of property other than military
28-3.1-532. Waste, spoilage, or destruction of property other than military. Any person subject to this code who while on duty status willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States or of the state shall be punished as a court-martial directs.
C.R.S. § 28-3.1-533 Driving while impaired - reckless driving
28-3.1-533. Driving while impaired - reckless driving. Any person subject to this code who operates any vehicle while impaired by alcohol, marijuana, drugs, or intoxicants of any kind, or any combination thereof, or in a reckless or wanton manner shall be punished as a court-martial directs.
C.R.S. § 28-3.1-534 Impaired on duty - leaving or sleeping on post
28-3.1-534. Impaired on duty - leaving or sleeping on post. Any person subject to this code who is found impaired by alcohol, marijuana, drugs, or intoxicants of any kind, or any combination thereof, on duty or sleeping upon his or her post or who leaves his or her post before he or she is regularly relieved shall be punished as a court-martial directs.
C.R.S. § 28-3.1-535 Malingering
28-3.1-535. Malingering. Any person subject to this code who, for the purpose of avoiding work, duty, or service, feigns illness, physical disablement, mental lapse, or derangement or intentionally inflicts self-injury shall be punished as a court-martial directs.
C.R.S. § 28-3.1-536 Riot - breach of peace
28-3.1-536. Riot - breach of peace. Any person subject to this code who causes or participates in any riot or breach of the peace shall be punished as a court-martial directs.
C.R.S. § 28-3.1-537 Provoking or reproachful words
28-3.1-537. Provoking or reproachful words. Any person subject to this code who uses provoking or reproachful words or gestures towards any other person subject to this code shall be punished as a court-martial directs.
C.R.S. § 28-3.1-538 Larceny and wrongful appropriation
28-3.1-538. Larceny and wrongful appropriation. (1) Any person subject to this code who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind: With intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his or her own use or the use of any person other than the owner, is guilty of larceny; or, with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his or her own use or the use of any person other than the owner, is guilty of wrongful appropriation.
(2) Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial directs.
C.R.S. § 28-3.1-539 Robbery
28-3.1-539. Robbery. Any person subject to this code who with intent to steal takes anything of value from the person or in the presence of another against his or her will, by means of force or violence or fear of immediate or future injury to his or her person or property or to the person or property of a relative or member of his or her family or of anyone in his or her company at the time of the robbery, is guilty of robbery and shall be punished as a court-martial directs.
C.R.S. § 28-3.1-540 Forgery
28-3.1-540. Forgery. Any person subject to this code who, with intent to defraud, falsely makes or alters any signature to any writing or any part thereof which would, if genuine, apparently impose a legal liability on another or change his or her legal right or liability to his or her prejudice or utters, offers, issues, or transfers such a writing, known to him or her to be so made or altered, is guilty of forgery and shall be punished as a court-martial may direct.
C.R.S. § 28-3.1-541 Maiming
28-3.1-541. Maiming. Any person subject to this code who, with intent to injure, disfigure, or disable, inflicts upon the person of another an injury which seriously disfigures his or her person by any mutilation thereof, destroys or disables any member or organ of his or her body, or seriously diminishes his or her physical vigor by the injury of any member or organ is guilty of maiming and shall be punished as a court-martial directs.
C.R.S. § 28-3.1-542 Arson
28-3.1-542. Arson. (1) Any person subject to this code who willfully and maliciously burns or sets on fire an inhabited dwelling or any other structure, movable or immovable, wherein to the knowledge of the offender there is at the time a human being is guilty of aggravated arson and shall be punished as a court-martial directs.
(2) Any person subject to this code who willfully and maliciously burns or sets fire to the property of another, except as provided in subsection (1) of this section, is guilty of simple arson and shall be punished as a court-martial directs.
C.R.S. § 28-3.1-543 Extortion
28-3.1-543. Extortion. Any person subject to this code who communicates threats to another person with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and shall be punished as a court-martial directs.
C.R.S. § 28-3.1-544 Assault
28-3.1-544. Assault. (1) Any person subject to this code who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial directs.
(2) Any person subject to this code who commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm or commits an assault and intentionally inflicts grievous bodily harm with or without a weapon is guilty of aggravated assault and shall be punished as a court-martial directs.
C.R.S. § 28-3.1-545 Burglary
28-3.1-545. Burglary. Any person subject to this code who, with intent to commit an offense punishable under this part 5, breaks and enters the dwelling house of another is guilty of burglary and shall be punished as a court-martial directs.
C.R.S. § 28-3.1-546 Perjury
28-3.1-546. Perjury. Any person subject to this code who in a judicial proceeding or in a course of justice conducted under this code willfully gives, upon a lawful oath or in any form allowed by law to be substituted for an oath, any false testimony material to the issue or matter of inquiry is guilty of perjury and shall be punished as a court-martial directs.
C.R.S. § 28-3.1-547 Frauds against the government
28-3.1-547. Frauds against the government. (1) Any person subject to this code shall be punished as a court-martial directs if he or she:
(a) Knowing it to be false or fraudulent, makes any claim against the United States, the state, or any officer thereof or presents to any person in the civil or military service, for approval or payment, any claim against the United States, the state, or any officer thereof;
(b) For the purpose of obtaining the approval, allowance, or payment of any claim against the United States, the state, or any officer thereof, makes or uses any writing or other paper knowing it to contain any false or fraudulent statements, makes any oath to any fact or to any writing or other paper knowing the oath to be false, or forges or counterfeits any signature upon any writing or other paper or uses any such signature knowing it to be forged or counterfeited;
(c) Having charge, possession, custody, or control of any money or other property of the United States or the state, furnished or intended for the armed forces of the United States or the state military forces, knowingly delivers to any person having authority to receive it any amount thereof less than that for which he or she receives a certificate or receipt; or
(d) Being authorized to make or deliver any paper certifying the receipt of any property of the United States or the state, furnished or intended for the armed forces of the United States or the state military forces, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States or the state.
C.R.S. § 28-3.1-548 Conduct unbecoming an officer
28-3.1-548. Conduct unbecoming an officer. Any commissioned officer, cadet, or candidate who is convicted of conduct unbecoming an officer shall be punished as a court-martial directs.
C.R.S. § 28-3.1-549 Cognizance of disreputable conduct
28-3.1-549. Cognizance of disreputable conduct. Though not specifically mentioned in this code, all disorders and neglects to the prejudice of good order and discipline in the state military forces and all conduct of a nature to bring discredit upon the state military forces, of which persons subject to this code may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of such court. However, cognizance may not be taken of, and jurisdiction may not be extended to, any offense which constitutes a felony under the laws of this state where the local prosecuting authority has initiated a criminal action against the accused in the same matter. Where such an action has not been initiated against the accused, trial counsel shall give notice to the local prosecuting authority that a court-martial has taken cognizance of the offense and shall certify to the court-martial that such notice was given.
C.R.S. § 28-3.1-550 Controlled substances - wrongful use - possession - transfer
28-3.1-550. Controlled substances - wrongful use - possession - transfer. (1) Any person subject to this code who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces of the United States or of the military forces of any state a substance described in subsection (2) of this section must be punished as a court-martial may direct.
(2) The substances referred to in subsection (1) of this section are the following:
(a) Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance;
(b) Any substance not specified in subsection (2)(a) of this section that is listed on a schedule of controlled substances prescribed by the president of the United States for the purposes of the federal "Uniform Code of Military Justice", 10 U.S.C. sec. 801 et seq., as amended; and
(c) Any other substance that is listed in schedules I through V of article 202 of the federal "Controlled Substances Act", 21 U.S.C. sec. 812, as amended.
C.R.S. § 28-3.1-601 Courts of inquiry
28-3.1-601. Courts of inquiry. (1) Courts of inquiry to investigate any matter may be convened by the governor.
(2) A court of inquiry shall consist of three or more commissioned officers. For each court of inquiry, the convening authority shall also appoint counsel for the court.
(3) Any person subject to this code whose conduct is subject to inquiry shall be designated as a party. Any person subject to this code or employed in the department who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.
(4) Members of a court of inquiry may be challenged by a party, but only for cause stated to the court.
(5) The members, the counsel, the reporter, and the interpreters of courts of inquiry shall take an oath or affirmation to faithfully perform their duties.
(6) Witnesses may be summoned to appear and testify and may be examined before courts of inquiry in the same manner as provided for courts-martial.
(7) Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the convening authority.
(8) Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member of the court in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member of the court in lieu of the counsel.
C.R.S. § 28-3.1-602 Authority to administer oaths
28-3.1-602. Authority to administer oaths. (1) The following members of the military forces may administer oaths for the purposes of military justice, and affidavits may be taken for those purposes before such members or before persons having the general powers of a notary public:
(a) The state judge advocate general and all assistant state judge advocates;
(b) All summary courts-martial members;
(c) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants;
(d) All commanding officers;
(e) The president, military judge, trial counsel, and assistant trial counsel for all general and special courts-martial;
(f) The president and counsel for the court of any court of inquiry;
(g) All officers designated to take a deposition;
(h) All persons detailed to conduct an investigation; and
(i) All other persons designated by regulations of the governor.
(2) Officers of the state military forces may not be authorized to administer oaths as provided in this section unless they are on duty in or with those forces under orders of the governor as prescribed in this code.
(3) The signature without seal of any person designated in this section, together with the title of his or her office, is prima facie evidence of his or her authority.
C.R.S. § 28-3.1-603 Sections to be explained
28-3.1-603. Sections to be explained. Sections of this code shall be carefully explained to every person at the time of his or her enlistment, appointment, transfer, or induction into or at the time of his or her order to duty in or with any of the state military forces or within ninety days thereafter. A complete text of this code and of the regulations prescribed by the governor thereunder shall be made available to any member of the state military forces, upon his or her request, for his or her personal examination. The requirements of this section are binding on all persons administering this code, but failure to follow them shall not divest a military court of jurisdiction.
C.R.S. § 28-3.1-604 Complaints of wrongs
28-3.1-604. Complaints of wrongs. Any member of the state military forces who believes himself or herself wronged by a commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of, and shall, as soon as possible, send to the adjutant general a true statement of that complaint, with the proceedings had thereon.
C.R.S. § 28-3.1-605 Redress of injuries to property
28-3.1-605. Redress of injuries to property. (1) Whenever complaint is made to any commanding officer that willful damage has been done to the property of any person or that his or her property has been wrongfully taken by members of the state military forces, said commanding officer may, subject to such regulations as the governor may prescribe, convene a board to investigate the complaint. The board shall consist of one to three commissioned officers and, for the purpose of that investigation, the board has power to summon witnesses and examine them under oath, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer and, in the amount approved by the commanding officer, shall be charged against the pay of the offenders. The order of the commanding officer directing such charges is conclusive on any disbursing officer for the payment by him or her to the injured parties of the damages so assessed and approved.
(2) If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.
(3) Any person subject to this code who is accused of causing willful damage to property has the right to be represented by counsel, to summon witnesses in his or her behalf, and to cross-examine those appearing against him or her.
C.R.S. § 28-3.1-606 Presumption of jurisdiction
28-3.1-606. Presumption of jurisdiction. The jurisdiction of the military courts and boards established by this code shall be presumed, and the burden of proof rests on any person seeking to invalidate the jurisdiction of those courts or boards of jurisdiction in any action or proceeding.
C.R.S. § 28-3.1-607 Delegation of authority by the governor
28-3.1-607. Delegation of authority by the governor. The governor may delegate any authority vested in him or her under this code.
Source: Open US Law by Vaquill AI (CC BY 4.0)URL: https://leg.colorado.gov/sites/default/files/images/olls/crs2024-title-28.docxFetched: 10/6/2026