Title 33, MILITARY AFFAIRS

In any case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case pursuant to § 33-10-209 is pending, the adjutant general may defer further service of the sentence to confinement wh…

A sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place authorized by this code. Any person so co…

The omission of hard labor as a sentence authorized under this code does not deprive the state confinement facility from employing it, if it otherwise is within the authority of that facility to do so. Source: SL 2012, ch 175 , § 152.

No place of confinement may require payment of any fee or charge for so receiving or confining a person except as otherwise provided by law. If no military confinement facility is available and a civilian facility charges fees as provided by law, the person confined shall be resp…

A court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes: (1) A dishonorable or bad-conduct discharge; or (2) Confinement; reduces that member to pay grade E-1, effective on the date of that approval. Source: S…

If the sentence of a member who is reduced in pay grade pursuant to subdivision 33-10-173(1) is set aside or disapproved, or, as finally approved, does not include any punishment pursuant to subdivisions 33-10-173(1) or (2), the rights and privileges of which the person was depri…

A court-martial sentence described in § 33-10-176 shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this section shall take effect on the date determined pursuant to § 33-10-164 …

A sentence covered by § 33-10-175 is any sentence that includes: (1) Confinement for more than six months; or (2) Confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal. Source: SL 2012, ch 175 , § 157.

In a case involving an accused who has dependents, the convening authority or other person acting under this code may waive any or all of the forfeitures of pay and allowances required by § 33-10-175 for a period not to exceed six months. Any amount of pay or allowances that woul…

If the sentence of a member who forfeits pay and allowances pursuant to § 33-10-175 is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in § 33-10-176 , the member shall be paid the pay and allowances which the member would have been…

A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused. Source: SL 2012, ch 175 , § 160.

Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense. Source: SL 2012, ch 175 , § 161.

The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence. Source: SL 2012, ch 175 , § 162.

The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Except in a summary court-martial case, such a submission shall be made within ten days a…

If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action pursuant to this code, for good cause, may extend the applicable period pursuant to § 33-10-182 for not more than an additional twen…

In a summary court-martial case, the accused shall be promptly provided a copy of the record of trial for use in preparing a submission authorized by § 33-10-182 . Source: SL 2012, ch 175 , § 165.

The accused may waive the right to make a submission to the convening authority as authorized by § 33-10-182 . Such a waiver shall be made in writing and may not be revoked. For the purposes of § 33-10-187 , the time within which the accused may make a submission under § 33-10-18…

The authority pursuant to § 33-10-188 to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. If it is impractical for the convening authority to act, the convening authority shall forward…

Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act pursuant to this code. Such action may be taken only after consideration of any matters submitted by the accused pursuant to § 33-10-182 or after the time fo…

Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, such person, in the person's sole discretion may: (1) Dismiss any charge or specification by setting aside a finding of guilty thereto; or (2) Cha…

Before acting pursuant to § 33-10-188 on any general or special court-martial case in which there is a finding of guilt, the convening authority or other person taking action shall obtain and consider the written recommendation of a judge advocate. The convening authority or othe…

The convening authority or other person taking action pursuant to this code, in the person's sole discretion, may order a proceeding in revision or a rehearing. Source: SL 2012, ch 175 , § 171.

A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial r…

A rehearing may be ordered by the convening authority or other person taking action pursuant to this code if that person disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not…

In each case subject to appellate review under this code, the accused may file with the convening authority a statement expressly withdrawing the right of the accused to such appeal. Such a withdrawal shall be signed by both the accused and the accused's defense counsel and shall…

The accused may withdraw an appeal at any time in accordance with appellate procedures as provided by law. Source: SL 2012, ch 175 , § 175.

In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial, or by a judge in a bench trial so long as it is not m…

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 shall include a certification by the trial counsel that the ap…

An appeal pursuant to §§ 33-10-195 and 33-10-196 shall be diligently prosecuted as provided by law. Source: SL 2012, ch 175 , § 178.

An appeal pursuant to §§ 33-10-195 and 33-10-196 shall be forwarded to the court prescribed in § 33-10-209 . In ruling on an appeal pursuant to §§ 33-10-195 and 33-10-196 , that court may act only with respect to matters of law. Source: SL 2012, ch 175 , § 179.

Any period of delay resulting from an appeal pursuant to §§ 33-10-195 and 33-10-196 shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge t…

Terms used in this chapter mean: (1) "Accuser," a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused; (…

Each rehearing under this code shall take place before a court-martial composed of members not members of the court-martial that first heard the case. Upon a rehearing the accused may not be tried for any offense of which the accused was found not guilty by the first court-martia…

Each general and special court-martial case in which there has been a finding of guilty shall be reviewed by the state's senior force judge advocate. The state's senior force judge advocate may not review a case under this section if that person has acted in the same case as an a…

The record of trial and related documents in each case reviewed pursuant to § 33-10-201 shall be sent for action to the adjutant general, if: (1) The judge advocate who reviewed the case recommends corrective action; (2) The sentence approved pursuant to § 33-10-187 extends to di…

The adjutant general may: (1) Disapprove or approve the findings or sentence, in whole or in part; (2) Remit, commute, or suspend the sentence in whole or in part; (3) Except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findin…

If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges. Source: SL 2012, ch 175 , § 185.

If the opinion of the state's senior force judge advocate, in the state's senior force judge advocate's review pursuant to § 33-10-201 is that corrective action is required as a matter of law and if the adjutant general does not take action that is at least as favorable to the ac…

The state's senior force judge advocate may review any case in which there has been a finding of not guilty of all charges and specifications. The state's senior force judge advocate may not review a case under this section if that person has acted in the same case as an accuser,…

The record of trial and related documents in each case reviewed pursuant to § 33-10-206 shall be sent for action to the adjutant general. The adjutant general may: (1) If subject matter jurisdiction is found to be lacking, void the court-martial ab initio , with or without prejud…

Except as otherwise required by this code, all records of trial and related documents shall be transmitted and disposed of as prescribed by rule and provided by law. Source: SL 2012, ch 175 , § 189.

Any decision of a court-martial may be appealed to the South Dakota Supreme Court. The appellate procedures to be followed shall be those provided by law for the appeal of criminal cases. Source: SL 2012, ch 175 , § 190.

This code applies at all times to all members of the state military forces and all other military forces attached or assigned thereto. Source: SL 2012, ch 175 , § 2.

The senior force judge advocate shall detail a judge advocate as appellate government counsel to represent the state in the review or appeal of cases pursuant to § 33-10-209 and before any federal court when requested to do so by the state attorney general. Appellate government c…

Upon an appeal by the state, an accused has the right to be represented by detailed military counsel before any reviewing authority and before any appellate court. Source: SL 2012, ch 175 , § 192.

Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority. Source: SL 2012, ch 175 , § 193.