Legislature(2015 - 2016)Anch LIO AUDITORIUM

09/22/2015 01:30 PM House JUDICIARY

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01:31:38 PM Start
01:32:25 PM HB126
03:47:01 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Presentation by Captain Forrest Dunbar,
Assistant Judge Advocate, Alaska Army National
-- Public and Invited Testimony --
            HB 126-CODE OF MILITARY JUSTICE; APPEALS                                                                        
1:32:25 PM                                                                                                                    
CHAIR LEDOUX announced  that the only order of  business would be                                                               
HOUSE BILL  NO. 126,  "An Act relating  to the  administration of                                                               
military justice; relating to the  adoption of a code of military                                                               
justice by  the adjutant  general; relating  to the  authority of                                                               
the  adjutant general;  relating  to appeals  of convictions  and                                                               
sentences  of courts-martial;  establishing the  Military Appeals                                                               
Commission;  relating  to  the  detention  and  incarceration  of                                                               
members  of the  militia;  relating to  the  jurisdiction of  the                                                               
court  of   appeals;  relating  to  involuntary   commitment  for                                                               
evaluation  or treatment  of a  mental disease  or defect  before                                                               
court-martial proceedings; and providing  for an effective date."                                                               
[Before the committee was CSHB 126 (MLV).]                                                                                      
1:32:38 PM                                                                                                                    
REPRESENTATIVE  KELLER  moved  to  adopt CSHB  126,  labeled  29-                                                               
LS0473\I,  Wallace,  9/18/15, as  the  working  document.   There                                                               
being no objection, Version I was before the committee.                                                                         
CHAIR  LEDOUX  noted that  Captain  Forrest  Dunbar will  present                                                               
Version  I,  and  explained that  Version  I  includes  documents                                                               
related to Version  P, and included the [indisc.]  version of the                                                               
bill.  She  further explained that the  sectional analysis refers                                                               
to Version P, and also applies  to Version I, as the changes made                                                               
were minor.                                                                                                                     
1:33:48 PM                                                                                                                    
FORREST  DUNBAR, Captain/Assistant  Judge  Advocate, Alaska  Army                                                               
National Guard,  noted that a  Code of Military  Justice, similar                                                               
to  a criminal  code, offers  commanders the  ability to  conduct                                                               
courts-martial,  and nonjudicial  punishment  for minor  offenses                                                               
resulting in reductions, fines, and  withholding pay.  He pointed                                                               
to a graphic [contained within  the committee packets] and stated                                                               
the goal is  to always maintain good order  and discipline within                                                               
the  Alaska  National  Guard, approximately  4,000  soldiers  and                                                               
airmen across  the state.   He advised the guardsmen  are subject                                                               
to  Alaska criminal  law while  in this  state, and  can also  be                                                               
disciplined  using administrative  action, which  include letters                                                               
of  reprimand,  reduction  boards,  and separation  boards.    He                                                               
explained  that separation  boards  are  intensive and  conducted                                                               
according to federal regulations, and  on both sides of the board                                                               
the  service  members  and  command   are  represented  by  Judge                                                               
Advocates.   He referred to  page 1  of the slide  show depicting                                                               
the third leg of a stool as  a tool other states have, and Alaska                                                               
has not had,  as an Alaska Code of Military  Justice (ACMJ) based                                                               
in part  upon the Uniform  Code of Military Justice  (UCMJ) which                                                               
is the federal comprehensive criminal code for the military.                                                                    
1:37:05 PM                                                                                                                    
CHAIR LEDOUX  asked whether prior to  this bill, if someone  is a                                                               
bad   actor   in  either   civil,   criminal   courts,  or   this                                                               
administrative  action,  the guard  had  no  authority to  court-                                                               
CAPTAIN DUNBAR  responded correct, as  the guard is  limited with                                                               
those  administrative actions  in exactly  what it  can do.   For                                                               
example,  he  pointed out,  the  guard  cannot give  bad  conduct                                                               
discharges  or dishonorable  discharges; therefore,  it gives  an                                                               
"other than honorable discharge."                                                                                               
CHAIR LEDOUX posed a scenario  of someone that commits an offense                                                               
while in the National Guard, and  the bill passes, and the person                                                               
is no  longer in the  National Guard, asked whether  the National                                                               
Guard will have jurisdiction over that person.                                                                                  
CAPTAIN  DUNBAR  acknowledged  that  the question  has  not  been                                                               
researched  and  he will  get  back  to  the committee,  but  his                                                               
initial reaction is "No, we're not  going to pull people back and                                                               
court-martial them,"  in that it  would be  an ex post  facto law                                                               
and the  National Guard  would not be  able to  criminally punish                                                               
them for a law not yet on the books.                                                                                            
CHAIR LEDOUX disagreed that it would  be an ex post facto law, in                                                               
that  it would  be a  different type  of punishment  and was  not                                                               
certain  the prohibition  against ex  post facto  law necessarily                                                               
CAPTAIN  DUNBAR said  he will  speak with  the Department  of Law                                                               
(DOL), but  at this  time he does  not anticipate  pulling people                                                               
back due to past conduct.                                                                                                       
1:39:49 PM                                                                                                                    
CAPTAIN DUNBAR  referred to  slide 2, and  offered that  the bill                                                               
coming  out  of  the  Military   and  Veterans  Affairs  Standing                                                               
Committee  was essentially  a  merged  version of  Representative                                                               
LeDoux  and  Representative  Tuck's  two  bills  introduced  last                                                               
CHAIR  LEDOUX interjected  that  the version  passed  out of  the                                                               
Military  and  Veterans  Affairs  Standing Committee  was  not  a                                                               
merged version in that Version I is the merged version.                                                                         
CAPTAIN  DUNBAR described  it as  the "more  merged version,"  as                                                               
provisions  were taken  from Representative  Tuck's  bill in  the                                                               
spring, and now more have  been taken due to conversations during                                                               
the summer.  He explained that  the version adopted in the spring                                                               
instructed the National Guard to  create two sets of regulations,                                                               
one  being  the  punitive  articles,  and  the  other  being  the                                                               
nonjudicial  punishment regulation.    During the  summer it  was                                                               
determined  that the  punitive  articles would  no  longer be  in                                                               
regulation, but instead in statute, he explained.                                                                               
1:41:36 PM                                                                                                                    
REPRESENTATIVE KELLER  referred to his statement  that most other                                                               
states  [adopted  a  Code  of Military  Justice]  and  asked  for                                                               
clarification,  including   whether  the   bill  is   before  the                                                               
committee due to past struggles  wherein possibly justice was not                                                               
CAPTAIN DUNBAR  responded that the  bill is before  the committee                                                               
in  large part  due to  events over  the last  several years  and                                                               
specifically the federal Office  of Criminal Investigations (OCI)                                                               
report.   He offered that a  recommendation of the OCI  report is                                                               
that the Alaska National Guard  adopt a Code of Military Justice,                                                               
which motivated  the National Guard  to work  with Representative                                                               
LeDoux  and others  to create  this system.   Major  Brian Fuchs,                                                               
Alaska Provost Marshall was appointed  due to a recommendation of                                                               
the  OCI report.    In 2007,  the National  Guard  Bureau (not  a                                                               
command and  control organization) published a  recommended state                                                               
model  code  and a  number  of  states  adopted that  code  which                                                               
reflected the  federal Uniform Code  of Military  Justice (UCMJ).                                                               
He referred to  slide 3, and advised the  Commanders Action Group                                                               
(that  included a  number of  leaders, enlisted  leaders, warrant                                                               
officers,    commanders,    and   Alaska    self-defense    force                                                               
representative) reviewed the UCMJ with  the state model code, and                                                               
reviewed each  provision line-by-line  as to  what to  bring into                                                               
Alaska.    The  group  worked  on  the  assumption  it  would  be                                                               
regulation,   but   when    the   punitive   articles   assembled                                                               
Representative  LeDoux  advised it  should  be  in statute.    An                                                               
important   facet  is   the  nonjudicial   punishment  regulation                                                               
allowing  commanders  to,  more  quickly  than  a  court-martial,                                                               
discipline   soldiers  and   airmen  with   minor  offenses   and                                                               
punishments.  He said the bill  allows the National Guard to keep                                                               
the nonjudicial  punishment regulation as a  regulation, which is                                                               
more common in other states, and  plans to present a good version                                                               
to the committee before January  2016.  He advised the Commanders                                                               
Action Group is reviewing best practices from other states.                                                                     
1:47:03 PM                                                                                                                    
REPRESENTATIVE KELLER  questioned whether there is  resistance to                                                               
this  in other  states, and  the source  of the  resistance.   He                                                               
asked  whether  the National  Guard  Bureau  recommends that  the                                                               
states  do  adopt,  or  did  it just  recommend  a  standard  for                                                               
adoption.   He further asked  why the  National Guard did  not do                                                               
this a long time ago.                                                                                                           
CAPTAIN  DUNBAR  advised  that  the  National  Guard  Bureau  did                                                               
recommend  that other  states adopt  their model  code, and  some                                                               
did.    The  biggest  resistance  is  cost  and  resources.    He                                                               
explained  that   in  the  90's   the  Judge   Advocate's  Office                                                               
recommended that  the model code  not be  adopted due to  lack of                                                               
funds as  courts martial are  costly, and  nonjudicial punishment                                                               
requires  training  and resources.    He  expressed that  command                                                               
decided it  is worth  the cost  due to the  events over  the last                                                               
several years.                                                                                                                  
1:49:23 PM                                                                                                                    
CHAIR LEDOUX  asked whether he  could honestly say that  with the                                                               
real problems with  the former leadership of  the National Guard,                                                               
this  bill would  have made  a difference,  and opined  this bill                                                               
will not make a difference without good leadership.                                                                             
CAPTAIN DUNBAR  agreed, and said  [the bill]  is a larger  set of                                                               
solutions,  including the  creation  of a  provost  marshal.   He                                                               
pointed  out that  good leadership  is  at the  heart of  things,                                                               
similar  to the  [state] criminal  code wherein  it doesn't  work                                                               
without good  prosecutors and police  officers.  He  opined there                                                               
is currently a  good command structure and the bill  is a tool it                                                               
can use.                                                                                                                        
1:51:35 PM                                                                                                                    
REPRESENTATIVE KELLER  remarked that the committee  does not have                                                               
a fiscal  note, which  will be  a large  factor for  the upcoming                                                               
CHAIR LEDOUX said she has not seen a fiscal note.                                                                               
REPRESENTATIVE  KELLER  advised they  are  there,  but are  dated                                                               
March from the old version.                                                                                                     
1:52:03 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  asked  whether  there is  a  "Plan  B"                                                               
should the legislature not appropriate enough money.                                                                            
CAPTAIN  DUNBAR deferred  to the  deputy  commissioner, but  said                                                               
that Version I should have a  lower fiscal note than the previous                                                               
version  due to  steps  taken  with the  Alaska  Court System  in                                                               
reducing their exposure to appeals.                                                                                             
1:53:10 PM                                                                                                                    
REPRESENTATIVE  MILLETT offered  that even  though costs  will be                                                               
increased,  the  cost  of  human   lives  will  be  decreased  by                                                               
prosecuting people for wrongdoing and protecting victims.                                                                       
1:53:49 PM                                                                                                                    
REPRESENTATIVE  CLAMAN   said  assuming  the  bill   passes,  the                                                               
question of whether  it made a difference in  the Alaska National                                                               
Guard as a tool, will only be known 5-10 years from now.                                                                        
CAPTAIN DUNBAR  agreed, and said  the National  Guard anticipates                                                               
few actual courts  martial in that most other states  have one or                                                               
less  than one  a  year.   He extended  that  the more  immediate                                                               
effect will be  the nonjudicial punishment regulation  which is a                                                               
different manner  in which to enforce  the code.  He  assumed the                                                               
deputy commissioner  would point  out that  for every  dollar the                                                               
Alaska National Guard spends, the  federal government spends much                                                               
more  on  the   Alaska  National  Guard.     For  example,  while                                                               
testifying, his  salary is  paid by  the federal  government even                                                               
while under the  command and control of the state,  as will other                                                               
individuals involved in various activities,  he pointed out.  The                                                               
National Guard Bureau indicated  it will make resources available                                                               
for these things by putting out  the state model code, and having                                                               
investigators  review  certain kinds  of  crimes  in that  it  is                                                               
important for  the combat  readiness of the  force that  there is                                                               
good order and discipline.                                                                                                      
1:55:56 PM                                                                                                                    
CAPTAIN  DUNBAR reiterated  a difference  between Versions  I and                                                               
the version reviewed  in March, being that  the punitive articles                                                               
were put into statute, Sec.  26.05.577 - 26.05.634.  He described                                                               
it as  substantive articles that  cover items such as:  missing a                                                               
movement,  disrespect  toward  a   superior  officer,  which  are                                                               
offenses the  guard will  be able  to enforce.   He  offered that                                                               
much of the  other portions of the bill tells  the National Guard                                                               
how to  procedurally set up  things, such as a  court-martial and                                                               
who can  be on  a court-martial.   He  pointed out  another major                                                               
change to the bill is that  the earlier version was unclear as to                                                               
when these laws  would apply to the service members.   He offered                                                               
that through discussions the leadership  determined it applies at                                                               
all  times to  the service  members  - a  model entitled  "24/7,"                                                               
which a number of other states  adopted.  The bill was originally                                                               
written to  not apply to  the volunteer "self-defense  force," as                                                               
it did not  make sense to hold  them to the same  standard as the                                                               
National Guard, he  said.  He pointed out that  the "Alaska Self-                                                               
Defense Force"  took great offense  and asked  to be held  to the                                                               
same standard, and now they are.                                                                                                
1:58:02 PM                                                                                                                    
CHAIR LEDOUX  asked whether the  state defense force is  the same                                                               
as the self-defense force.                                                                                                      
CAPTAIN DUNBAR answered that he misspoke  in that it is the state                                                               
defense  force, not  self-defense force.   In  response to  Chair                                                               
LeDoux's  comment,  answered  that   it  is  a  relatively  small                                                               
organization  of approximately  90 members,  mostly comprised  of                                                               
officers.  He  explained that in the time of  calamity they would                                                               
be  gathered  by  the  governor and  provide  leadership  to  the                                                               
unorganized  militia  which  is almost  every  able-bodied  male,                                                               
which  is how  the law  is written.   He  offered they  also have                                                               
technical  expertise  and  are active  participants  in  disaster                                                               
relief especially in Alaska Shield, for example.                                                                                
1:59:03 PM                                                                                                                    
CHAIR LEDOUX posed  a scenario that should a  volunteer receive a                                                               
DUI, having  nothing to  do with  their military  volunteer work,                                                               
asked whether they are subject to court-martial.                                                                                
CAPTAIN DUNBAR replied in the  affirmative as they wear a uniform                                                               
and  a  rank,  and  think  of  themselves  as  soldiers  -  their                                                               
leadership would decide  to call the court-martial.   He said DUI                                                               
is  another main  change in  that in  the spring  he assured  the                                                               
committee  the National  Guard only  wants to  prosecute strictly                                                               
military offenses.   After communicating with  service members it                                                               
was found  they want a  couple of offenses, not  purely military,                                                               
included within the Alaska Code  of Military Justice, he related.                                                               
He explained  that the federal  UCMJ is comprehensive  and covers                                                               
things  such as:  murder, arson,  and assault,  and the  National                                                               
Guard believes  that civilian law enforcement  is better equipped                                                               
to handle  most of  those cases.   However, there  are relatively                                                               
common offenses  where the  National Guard  wants the  ability to                                                               
court-martial   people  if,   for  some   reason,  the   civilian                                                               
prosecutors did  not move forward  and prosecute DUI,  and sexual                                                               
assault  offenses.   Within the  vast majority  of cases  it will                                                               
remain  with the  civilian  law enforcement  and,  he noted,  the                                                               
language was  altered to clearly  read that civilians  have first                                                               
crack at a case and only  when they decide not to pursue charges,                                                               
the National Guard has the ability to potentially court-martial.                                                                
2:02:19 PM                                                                                                                    
CHAIR  LEDOUX asked  whether he  was  discussing Sec.  26.05.400,                                                               
[page 3, lines 15-23], which read:                                                                                              
          Courts martial have primary jurisdiction over                                                                         
     offenses under  this chapter.  A  proper civilian court                                                                    
     has primary  jurisdiction of an offense  not defined by                                                                    
     this  chapter when  an act  or  omission violates  both                                                                    
     this  chapter  and  local   criminal  law,  foreign  or                                                                    
     domestic.    In  that  case,  a  court-martial  may  be                                                                    
     initiated only after a  civilian authority has declined                                                                    
     to   prosecute  or   dismissed  the   charge,  provided                                                                    
     jeopardy   has  not   attached.     Jurisdiction   over                                                                    
     attempted crimes, conspiracy  crimes, solicitation, and                                                                    
     accessory crimes  must be determined by  the underlying                                                                    
     offense.    These  jurisdictional requirements  do  not                                                                    
     apply  to  nonjudicial   punishment  or  administrative                                                                    
     action taken by military authorities.                                                                                      
CHAIR LEDOUX  stressed that she does  not find it all  that clear                                                               
and offered  alternative language  that Ms.  Wallace, Legislative                                                               
Legal  and  Research  Services,  will  review.    She  suggested,                                                               
"Court-martials  have primary  jurisdiction  over offenses  under                                                               
this  chapter except  that a  proper civilian  court has  primary                                                               
jurisdiction of an offense when  an act or omission violates both                                                               
this chapter and  local criminal law, foreign or  domestic."  She                                                               
presumed the language is acceptable to the National Guard.                                                                      
CAPTAIN DUNBAR said  it is acceptable, and it  also addresses the                                                               
memo  dated   9/21/15,  from   Legislative  Legal   and  Research                                                               
Services, wherein this concern is highlighted.                                                                                  
2:03:48 PM                                                                                                                    
MEGAN   WALLACE,  Attorney,   Legislative   Legal  and   Research                                                               
Services,  Legislative Affairs  Agency,  responded  that it  does                                                               
help remedy  the ambiguity with  the phrase "not defined  by this                                                               
chapter" currently  in Version I.   She noted that  removing that                                                               
phrase makes the intent clear,  that the civilian court has first                                                               
opportunity to prosecute those overlapping crimes.                                                                              
CAPTAIN DUNBAR offered  that the National Guard  agrees with that                                                               
assessment which is a good amendment  to the bill.  He reiterated                                                               
that DUI and sexual assault are the two main offenses ...                                                                       
2:05:06 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  interjected that DUI is  in Sec. 26.05.                                                               
.611, beginning on  page 42, [beginning on line 26].   He posed a                                                               
scenario of someone driving from  work to home, having nothing to                                                               
do with the National Guard and gets  a DUI.  He asked whether the                                                               
intention  is that  the National  Guard could  court-martial that                                                               
person, and  questioned whether  there should be  a nexus  to the                                                               
CAPTAIN  DUNBAR   answered  yes,   the  National   Guard  intends                                                               
jurisdiction,  with   the  nexus  being  the   person's  military                                                               
service, which is how other states have done it.                                                                                
2:06:10 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  questioned, currently,  when reservists                                                               
do  something with  no relation  to the  National Guard  or their                                                               
service  under the  reserve component,  that they  can be  court-                                                               
martialed for something  in Europe or someplace  nowhere near the                                                               
National Guard and having nothing to do with the National Guard.                                                                
CAPTAIN  DUNBAR  offered  that   they  can't  be  court-martialed                                                               
because currently the National Guard  does not court-martial, but                                                               
there may  be an administrative  separation wherein a  person may                                                               
not be on duty ...                                                                                                              
REPRESENTATIVE  GRUENBERG interjected  that  he  is not  speaking                                                               
about the  administrative separation from the  service, and asked                                                               
whether Captain Dunbar said they could be court-martialed.                                                                      
CAPTAIN DUNBAR answered yes.                                                                                                    
REPRESENTATIVE GRUENBERG asked whether  there are cases affirming                                                               
that jurisdiction.                                                                                                              
CAPTAIN DUNBAR  offered that the  National Guard has never  had a                                                               
Code of  Military Justice to  attempt this, yet other  states the                                                               
nexus is  the military service  and not  whether or not  a person                                                               
was headed to or from drill.                                                                                                    
2:07:33 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  posed a scenario  of someone on  a trip                                                               
across country  and receives a  DUI, he asked whether  the intent                                                               
is that it  could form the basis of a  court-martial and put that                                                               
person in  prison a year.   He opined that it  is not permissible                                                               
under the  due process clause  criminally, as a person  cannot be                                                               
prosecuted in Alaska for a crime  with no connection to the State                                                               
of Alaska.  He  advised that a few years ago  he, and DOL, looked                                                               
into this  issue and believes there  must be some nexus  with the                                                               
jurisdiction assuming the case.                                                                                                 
CAPTAIN  DUNBAR  answered  that within  the  first  scenario  the                                                               
discussion was regarding the person  not being on orders, and the                                                               
second scenario was  the person is not  in the state at  all.  He                                                               
said  the second  scenario  is  a question  he  does  not have  a                                                               
detailed answer, but  the bill contains a long  arm provision, as                                                               
to whether  or not  it could  reach out  to someone  committing a                                                               
non-military offense  in a non-military status  in another state,                                                               
the reach  to them  would be  tenuous.  He  offered it  is likely                                                               
they  would be  prosecuted  by that  state, and  administratively                                                               
punished by  the National  Guard.   In a  scenario of  the person                                                               
being  within the  State of  Alaska and  a member  of the  Alaska                                                               
National Guard, it  doesn't matter what status they  are in, such                                                               
as  Title 32,  state  active  duty, or  in  civilian status,  the                                                               
National Guard has jurisdiction over  them.  He related the point                                                               
being that a person is a soldier  or airman 24/7, and are held to                                                               
standards.   He opined that  standards are not  particularly hard                                                               
to  meet  because the  vast  majority  of offenses  are  military                                                               
offenses, "of which  is almost impossible to commit  when you are                                                               
not in uniform, that  is, it is hard to be a  deserter if you are                                                               
not on orders."                                                                                                                 
2:10:09 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG stated  this  may be  the poster  child                                                               
that does  not fall  into the  category of a  DUI, and  asked the                                                               
jurisdictional statute cite.                                                                                                    
CAPTAIN DUNBAR  asked whether  he was referring  to the  long arm                                                               
statute within the bill, and advised  he does not have it off the                                                               
top of his head.                                                                                                                
REPRESENTATIVE  GRUENBERG  said  he   finds  this  troubling  and                                                               
requested the  authority in the  previous scenarios  have nothing                                                               
to do  with the military and  are within the jurisdiction  of the                                                               
State of Alaska.                                                                                                                
CAPTAIN DUNBAR  agreed to  explore the  issue, and  stressed that                                                               
the intent  is that  their soldiers  and airmen  will be  held to                                                               
this  standard,  regardless  of whether  they  are  currently  in                                                               
uniform, or not.                                                                                                                
REPRESENTATIVE GRUENBERG  offered that it could  be handled under                                                               
the  Alaska  civil  jurisdiction   statute,  and  under  Jonz  v.                                                             
Garrett/Airesearch Corp.,  490 P.2d 1197  (1971), which  has been                                                             
interpreted  identically  to  California,  "and  to  the  maximum                                                               
extent constitutionally permissible."                                                                                           
CHAIR LEDOUX  suggested that at  the time of the  initial signing                                                               
of  a  soldier   or  airman's  contract,  let   them  consent  to                                                               
CAPTAIN DUNBAR responded  that it could be  written more explicit                                                               
in the contract, but the feeling  of command is that when someone                                                               
swears  to  uphold  the  laws  of  the  state  and  Alaska  State                                                               
Constitution  holds them  up to  a higher  standard, and  holding                                                               
themselves  up to  this standard.   He  agrees that  the National                                                               
Guard must  be very  explicit with their  soldiers and  airmen as                                                               
they join the guard that they are subject to this code.                                                                         
2:13:31 PM                                                                                                                    
REPRESENTATIVE  CHRIS  TUCK,  Alaska State  Legislature,  offered                                                               
that the  Department of Military and  Veterans Affairs' authority                                                               
serves many purposes, and with  regard to CSHB 126 the department                                                               
is an  employer and within  human resources  laws may need  to be                                                               
put in  place through regulations.   He noted that when  it comes                                                               
to criminal misconduct a procedure  must be determined.  He noted                                                               
the  issues are  both an  employer and  overseer of  criminal law                                                               
and, for example, the DWI  scenario that civilian courts have the                                                               
authority  and obligation  to prosecute,  but the  National Guard                                                               
should have  the reserved  right to  administratively discipline.                                                               
He  offered an  example  of a  trucking  company owner  expecting                                                               
drivers with  clean driving records and  the fact a person  has a                                                               
DWI, the owner has no  jurisdiction to criminally charge them but                                                               
being  an employer,  disciplinary  action can  be  taken on  that                                                               
employee.  He said he is  not convinced the National Guard should                                                               
have jurisdiction  or criminally  charged unless  it is  on their                                                               
property  and  a  person  is  pulled  over  by  military  police;                                                               
however,  the   guard  should  reserve   for  the   integrity  of                                                               
employment and the  soldier's contract on agreeing  to uphold the                                                               
laws, the  National Guard should  be allowed that authority.   He                                                               
stated the  point of demarcation  is the  employer responsibility                                                               
versus the overseer of criminal activity.                                                                                       
2:15:51 PM                                                                                                                    
CAPTAIN  DUNBAR  surmised  that   what  Representative  Tuck  was                                                               
speaking  to is  covered by  nonjudicial punishment  regulations.                                                               
He explained  that nonjudicial punishment is  not the traditional                                                               
federal  regulatory administrative  action, as  it is  faster and                                                               
different  but  looks  like  administrative  action  rather  than                                                               
criminal action.  Within the  regulation being written there will                                                               
be no  threat of  prison time or  separation using  a nonjudicial                                                               
punishment,  and  these  offenses  must be  within  the  Code  of                                                               
Military Justice  in order  to use  nonjudicial punishment.   For                                                               
example, he said,  if DUI is removed from  this code, nonjudicial                                                               
punishment will  not be  available unless  the guard  attempts to                                                               
use  other parts  of  the  code such  as,  conduct unbecoming  an                                                               
2:16:56 PM                                                                                                                    
CHAIR LEDOUX offered that it may  be difficult and could create a                                                               
more complicated  bill, but  she is  uncomfortable with  the idea                                                               
"Well,  we'll just  put this  in  so that  we  can use  it for  a                                                               
nonjudicial punishment, but we're really  not going to use it for                                                               
a criminal  punishment when it's  standing right there,  and it's                                                               
looking for  all the  world to see  like a  criminal punishment."                                                               
She offered  that where the intent  is to not use  something as a                                                               
criminal punishment,  it must read similar  to Sec. 26.05.634(c),                                                               
page 52, lines 21-22, which read:                                                                                               
        (c) A court-martial may not impose a sentence of                                                                        
     confinement under (a) or (b) of this section.                                                                              
2:18:28 PM                                                                                                                    
CAPTAIN DUNBAR offered that the  National Guard will be unable to                                                               
bring  a  criminal charge,  or  court  marital, if  the  civilian                                                               
authorities criminally prosecute.   He advised that the civilians                                                               
collect the  evidence, and in  this scenario the  civilians would                                                               
have collected enough  evidence that the National  Guard would be                                                               
comfortable meeting the "beyond  a reasonable doubt" standard and                                                               
convicting  them with  a DUI,  and  the civilians  decide not  to                                                               
prosecute.   Nonjudicial  punishment has  remained in  regulation                                                               
and it does  not create jeopardy such that if  the civilians move                                                               
forward with  the criminal prosecution,  the National  Guard will                                                               
be able  to use nonjudicial  punishment which does not  result in                                                               
jail time  and possibly the civilian  charge will, he said.   The                                                               
National  Guard will  then use  nonjudicial punishment  to reduce                                                               
the service  member in rank or  withhold pay to enforce  the law.                                                               
He pointed  out that a goal  is to strengthen Sec.  26.05.400, to                                                               
clearly read  that civilians always  have the first shot,  and it                                                               
will only  be used in cases  where civilians have decided  not to                                                               
2:20:10 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  said that  some people  play a  game in                                                               
choosing a general  court-martial because it is  too expensive to                                                               
prosecute, and the charges are  dismissed.  He said someone could                                                               
have a  DUI in civilian  court and go  to jail for  a substantial                                                               
period of  time.   He asked  whether this bill  takes steps  in a                                                               
plea bargain  situation, who says  "I will agree to  plead guilty                                                               
to this  but only under  this where I may  not be in  jeopardy of                                                               
losing  my  license,  going  to  jail,  having  a  felony."    He                                                               
explained  there  could  be a  situation  with  an  over-burdened                                                               
district  attorney, and  a smart  defendant and  defense attorney                                                               
who are in the National Guard,  and the defendant agrees to plead                                                               
guilty  but the  punishment  must be  under  "this" because  they                                                               
would be immunized from "these" other problems.                                                                                 
CAPTAIN  DUNBAR advised  that  is why  Sec.  26.05.400 should  be                                                               
strong,  in  that the  prosecutor  would  have  had to  take  the                                                               
affirmative step to not prosecute  the person before the National                                                               
Guard would  do that, and  both of those  sets of laws  are under                                                               
the sovereign of the State of Alaska.                                                                                           
REPRESENTATIVE GRUENBERG interjected that  the National Guard and                                                               
the  JAG could  be  set up  by a  smart  prosecutor and  district                                                               
attorney  who could  say "Look,  I'm willing  to ...  it's a  hot                                                               
potato, I'm willing to wash my hands  of it and they would have a                                                               
choice of walking scot free -  you'd be the only people who could                                                               
do it.                                                                                                                          
CAPTAIN DUNBAR responded, at that  point the National Guard might                                                               
court-martial and  imprison the person  for a period of  time, as                                                               
well as dishonorably discharge them.                                                                                            
REPRESENTATIVE GRUENBERG said  he was pointing out  the issue and                                                               
doesn't know  what can be  done about  it, but these  people will                                                               
play games.                                                                                                                     
CAPTAIN DUNBAR  referred to the  strength of Sec.  26.05.400, and                                                               
the National Guard's  reliance on the civilian  prosecutors to do                                                               
their job.   He referred to Chair LeDoux's  previous comment that                                                               
none of these laws will function  if there is no good leadership,                                                               
and this bill  is predicated on the idea that  people are willing                                                               
to enforce the law.                                                                                                             
2:23:53 PM                                                                                                                    
REPRESENTATIVE  CLAMAN  stated  that  three  different  scenarios                                                               
occur  with  a  DUI:  a  DWI occurs  on  base  and  the  civilian                                                               
authorities  prosecute and  there is  a conviction  - under  this                                                               
bill the  National Guard has  the option of  imposing nonjudicial                                                               
punishment; a  DUI occurs  on base and  there is  an unsuccessful                                                               
civilian  prosecution so  the National  Guard has  the option  to                                                               
court-martial that  person because double jeopardy  would not bar                                                               
the  military  prosecution; and  a  presumably  on orders  person                                                               
receives a  DUI in South  Dakota, with a successful  South Dakota                                                               
civilian  prosecution, the  Alaska National  Guard is  limited to                                                               
nonjudicial options.                                                                                                            
CAPTAIN DUNBAR  offered a  fourth scenario  wherein a  soldier is                                                               
not on  orders, and  within their  general life  a DUI  occurs in                                                               
South  Dakota ...  in a  case  where they  are on  orders and  in                                                               
uniform,  the National  Guard has  the ability  to prosecute  and                                                               
punish.   He  referred to  the first  scenario wherein  civilians                                                               
convict  and  the  National  Guard  has  the  option  to  enforce                                                               
nonjudicial punishment is correct, which  is likely if the person                                                               
goes to  civilian jail.  He  said with the second  scenario where                                                               
civilians  prosecute and  do not  get a  conviction, if  jeopardy                                                               
attached the National  Guard is barred from a  court marital with                                                               
the   option   of   nonjudicial  punishment   or   administrative                                                               
2:26:38 PM                                                                                                                    
REPRESENTATIVE CLAMAN asked whether  the National Guard is barred                                                               
if the civilians declined prosecution.                                                                                          
CAPTAIN DUNBAR answered  the National Guard would  not be barred,                                                               
which is  the only time it  would have the ability  to go forward                                                               
and potentially court-martial a person for a DUI.                                                                               
2:27:00 PM                                                                                                                    
REPRESENTATIVE KELLER  surmised that the trigger  on whether this                                                               
code applies is  the affirmative action of the  prosecutor not to                                                               
prosecute, and requested guidelines.                                                                                            
CAPTAIN DUNBAR  explained that only  in the cases where  it could                                                               
be charged in both civilian  court and court-martial, such as DUI                                                               
and  sexual   assault,  would  that   affirmative  step   by  the                                                               
prosecutor be necessary.   In all of the  other strictly military                                                               
offenses  the National  Guard  has the  ability  to move  forward                                                               
regardless  of  the  civilians, because  the  civilians  have  no                                                               
jurisdiction.   He explained  that guidelines  have not  yet been                                                               
established.    He opined  that  a  statement from  the  civilian                                                               
prosecutor  would be  necessary  advising they  are unwilling  to                                                               
prosecute,  and  clearly  something   taken  up  by  the  provost                                                               
marshal.  Historically,  a problem within the  National Guard, he                                                               
pointed out, there have been  situations where someone receives a                                                               
DUI or  performs inappropriate relationships with  a recruit, and                                                               
the civilian  authorities assume  the National Guard  is handling                                                               
it and  vice versa, and  subsequently the offenders  fall through                                                               
the cracks.  He related that  this code is intended to plug those                                                               
holes  and  works  in  consort   with  the  provost  marshal  who                                                               
currently   coordinates  very   closely   with  law   enforcement                                                               
regarding potentially criminal offenses.   He said this issue has                                                               
been flagged by Legislative Legal and Research Services.                                                                        
2:29:55 PM                                                                                                                    
CHAIR LEDOUX assumed this issue  will arise more frequently under                                                               
sexual  assault cases  where it  boils down  to a  "he said,  she                                                               
said"   scenario.     Whereas,   the  typical   DUI  involves   a                                                               
breathalyzer  or  not, and  with  breathalyzer  there is  a  good                                                               
chance civilian authorities will prosecute, she remarked.                                                                       
CAPTAIN DUNBAR agreed.                                                                                                          
2:30:51 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  commented that usually the  question of                                                               
jeopardy is of double jeopardy  under what circumstances a person                                                               
can be retried.  He opined  in criminal law it generally attaches                                                               
with regard to  the timing of the  trial.  On the  other hand, he                                                               
said, the  question of  whether someone  should be  prosecuted in                                                               
federal court and state court, or  state and municipal court is a                                                               
matter  of  sovereignty.   He  presumed  in  this case,  the  two                                                               
concepts which are  different, are being melded  unless using the                                                               
term "jeopardy" differently than he was taught in law school.                                                                   
CAPTAIN DUNBAR explained it is being  used in the former sense in                                                               
that  there   is  no  question   that  the  National   Guard  has                                                               
sovereignty and  the state doesn't,  "that is  to say we  are the                                                               
same sovereign."   He stated Representative  Gruenberg is correct                                                               
that someone could be prosecuted by the federal government ...                                                                  
REPRESENTATIVE GRUENBERG  interjected that  was not  his question                                                               
and restated "are  you a state agency in the  prosecution here or                                                               
a federal agency."                                                                                                              
CHAIR  LEDOUX stressed  that Captain  Dunbar clearly  stated that                                                               
they will  not prosecute for  a court-martial where  jeopardy has                                                               
not attached,  so it  is not necessary  to determine  whether the                                                               
guard is  a federal agency  or state agency.   Theoretically, she                                                               
offered, when  assuming the  National Guard  is a  federal agency                                                               
there could be two prosecutions.                                                                                                
2:33:05 PM                                                                                                                    
REPRESENTATIVE  TUCK noted  the  provost  marshal's position  was                                                               
created  within  the  last  year.   He  is  aware  that  civilian                                                               
investigations  were jeopardized  by the  passing of  information                                                               
back and  forth between  the Anchorage  Police Department  and by                                                               
commanding  officers.    He  stressed   he  is  troubled  by  the                                                               
collusion  taking place  with the  provost  marshal and  civilian                                                               
court investigations due  to past practices and the  results.  He                                                               
pointed to  the bill  he introduced to  attempt to  separate that                                                               
because  whether it  is in  the National  Guard or  any employer,                                                               
when  a sexual  assault  investigation takes  place the  employer                                                               
should   not  be   notified,  unless   they  are   part  of   the                                                               
investigation or the  employee foregoes that right.   He remarked                                                               
that in  this case the  National Guard  is the employer  of their                                                               
soldiers  and airmen  and  for  the employer  to  know about  the                                                               
investigation of witnesses puts the  National Guard in an awkward                                                               
situation, which is  true in civilian life.   When reviewing CSHB
126,  the  hope is  that  the  provost  marshal will  answer  the                                                               
previous  problems,  but  he  said he  is  concerned  it  doesn't                                                               
completely   fix  the   problem   due  to   collusion  with   the                                                               
investigations that take place with  the National Guard being the                                                               
CHAIR LEDOUX  noted that is  really not  a subject of  this bill,                                                               
but perhaps another bill that  deals with the structural problems                                                               
with the National Guard.                                                                                                        
2:35:42 PM                                                                                                                    
CAPTAIN DUNBAR  related it  is no secret  that sexual  assault in                                                               
the whole  military has struggled with  including investigations.                                                               
He   offered  the   National  Guard   has  restricted   reporting                                                               
structures  in place  to address  this  issue, including  avenues                                                               
where potentially  assaulted soldiers can access  services with a                                                               
sexual  assault  response   coordinator,  without  command  being                                                               
informed.   He conveyed that the  language of the bill  was taken                                                               
from the Louisiana  Code [of Military Justice]  as their National                                                               
Guard is unique  in that the Judge Advocate  has been prosecuting                                                               
cases,  and imprisoning  people for  absent without  leave (AWOL)                                                               
for  not  showing up  at  drill  or  annual  training.   He  said                                                               
Louisiana's provision  is based  upon the federal  sexual assault                                                               
provision,  Article 121,  who took  it to  their state  level and                                                               
removed certain portions of the federal  law.  He advised that he                                                               
took the  same approach and  removed very serious  offenses, such                                                               
as unclassified  felonies in  Alaska or Class  A felonies  - such                                                               
as, sexual assault of a child,  or a violent rape.  Those offense                                                               
were  removed  because  the  National Guard  does  not  have  the                                                               
competence or desire to prosecute  as the specialized prosecutors                                                               
are  within  the  civilian  world.    Which,  he  said,  goes  to                                                               
Representative Tuck's comments as to  whether this should be kept                                                               
internal, and offered  that with sexual assault of  the child the                                                               
National Guard is not comfortable  keeping that internally, as it                                                               
should be  aggressively prosecuted  by civilian authorities.   He                                                               
pointed out  that the National Guard  is capped at a  sentence of                                                               
ten years in this bill, which is standard around the country.                                                                   
2:39:04 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  noted that approximately 20  years ago,                                                               
the  legislature took  major steps  to recognize  victim's rights                                                               
and it was  put into the constitution.  He  asked whether victims                                                               
or their  representatives were included in  the drafting process,                                                               
what are the protections, and  what participation does the victim                                                               
have in the process under CSHB 126.                                                                                             
CAPTAIN  DUNBAR  advised  that   victims  or  representatives  of                                                               
victims  are not  on  the Commanders  Action  Group; however,  he                                                               
spoke during a sexual response  coordinator meeting and presented                                                               
this code.   He said  victims were absolutely considered  in this                                                               
drafting,  and  are  represented within  the  investigations  and                                                               
preliminary  hearings  portion.   A  most  recent change  to  the                                                               
federal  UCMJ  was  the  introduction of  a  "rape  shield  law,"                                                               
wherein a victim  cannot be forced to testify  in the preliminary                                                               
hearing and  be re-victimized, and  that language is  included in                                                               
the bill, he explained.                                                                                                         
REPRESENTATIVE GRUENBERG  described it as an  important component                                                               
of Alaska criminal law.                                                                                                         
2:41:18 PM                                                                                                                    
CAPTAIN DUNBAR referred  to [slide 5] and advised  he worked with                                                               
the court system  to change the soldiers' right to  appeal to the                                                               
criminal  court of  appeals has  now been  changed to  the Alaska                                                               
Supreme Court by  the request of the court system,  and the right                                                               
to appeal  has now been changed  to appeal by petition.   He said                                                               
another change  includes the addition  of a grand  jury provision                                                               
for a potential  felony charge, and adapted the  state model code                                                               
to  conform to  Alaska constitutional  law.   He reiterated  that                                                               
changes to  the investigation  section introduce  protections for                                                               
victims of sexual assault and generally victims.                                                                                
2:43:05 PM                                                                                                                    
REPRESENTATIVE GRUENBERG asked whether this  code is bound by the                                                               
Alaska State Constitution.                                                                                                      
CAPTAIN DUNBAR  responded it  is absolutely  bound by  the Alaska                                                               
State Constitution.  An oath  is sworn to uphold the constitution                                                               
he  was  deliberate   in  conforming  this  bill   to  the  state                                                               
constitution.   He acknowledged  that in  the future  portions of                                                               
this will  be challenged by  defense attorneys, and  rarely cases                                                               
will end up in the United States Supreme Court.                                                                                 
2:44:04 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  opined there is a  constitutional right                                                               
within  some  cases  such  as,   K  &  L  Distributors,  Inc.  v.                                                             
Murkowski, 486 P.2d  351, 357 (Alaska 1971), that  read "at least                                                             
for  constitutional issues,  you have  a constitutional  right to                                                               
appeal to the Supreme Court."   He mentioned that language should                                                               
be in the bill in that regard  because in Alaska there is a right                                                               
of appeal  in criminal case  to the  court of appeals,  and civil                                                               
cases  to the  Supreme  Court.   Otherwise,  he  remarked, he  is                                                               
concerned and  asked whether this  has been vetted  through legal                                                               
counsel to identify any potential state constitutional issues.                                                                  
CAPTAIN  DUNBAR responded  that  Legislative  Legal and  Research                                                               
Services has  reviewed the bill  and offered several  memos which                                                               
he has  attempted to  meet and address,  although, in  some cases                                                               
they disagree, and is also working  with DOL.  With regard to the                                                               
right to  appeal, he  noted that  soldiers do  have the  right to                                                               
appeal  to  a Military  Appeals  Commission  established by  this                                                               
bill.  He remarked they will have  at least one right in the same                                                               
manner a  criminal defendant has  a right to  go to the  court of                                                               
appeals, and soldiers  have an additional right  to petition (not                                                               
right to  appeal) to  the Alaska Supreme  Court under  this bill.                                                               
In  moving forward,  he commented,  if Version  I passes  it will                                                               
establish  a functioning  system of  military justice,  although,                                                               
small amendments  could strengthen the bill  without changing the                                                               
intent   as  suggested   by  Chair   LeDoux  and   Representative                                                               
Gruenberg.   He offered that  he will  continue to work  with the                                                               
committee   in  passing   this   bill  out   of   the  House   of                                                               
Representatives,  Senate,  and to  the  governor's  desk by  next                                                               
session as  the National Guard  currently lacks tools  to improve                                                               
good order and discipline.                                                                                                      
2:48:26 PM                                                                                                                    
CHAIR LEDOUX referred to Sec. 2, page 2, lines 5-7, which read:                                                                 
          (a) Members of the militia ordered into active                                                                        
     service for the state by  order of the governor are not                                                                    
     liable  civilly [OR  CRIMINALLY]  for any  act done  by                                                                    
     them  in their  official  capacity while  in this  such                                                                    
CHAIR  LEDOUX posed  a scenario  of  a person  on National  Guard                                                               
time, off the base  hits someone with a car and  a DUI, that they                                                               
can't be sued.                                                                                                                  
CAPTAIN  DUNBAR deferred  to Representative  Gruenberg, and  said                                                               
this language is from the Murkowski administration.                                                                             
CHAIR  LEDOUX  pointed  out  that the  language  is  before  this                                                               
committee right now and wants to know what it actually means.                                                                   
CAPTAIN  DUNBAR  opined  that   Legislative  Legal  and  Research                                                               
Services included it  to conform the old law with  the new law by                                                               
removing "or  criminally" due to  the new  criminal jurisdiction.                                                               
As for the tort law, he deferred to Representative Gruenberg.                                                                   
2:50:17 PM                                                                                                                    
REPRESENTATIVE   GRUENBERG   opined   that   Governor   Murkowski                                                               
introduced a  "horrible" bill where  this provision  was included                                                               
relating to a terrible situation  where a National Guard airplane                                                               
crashed and everyone was killed.   He offered there is a doctrine                                                               
in  federal law  that the  Supreme  Court applied  to remove  the                                                               
immunization  of  the state  and  these  people were  allowed  to                                                               
recover.  He  said Governor Murkowski's bill  again immunized the                                                               
state, and  there was nothing  Representative Gruenberg  could do                                                               
about  it.   He said  he appreciates  the language  being in  the                                                               
bill, and  will brief the  committee at the appropriate  time, as                                                               
"this is  frankly something that  should be repealed -  the whole                                                               
CHAIR LEDOUX  surmised there  may be a  difference as  to whether                                                               
National Guard  people can sue  other National Guard  people, but                                                               
the person is a civilian and  someone from the National Guard ran                                                               
them over,  she can't see any  reason why a lawsuit  could not be                                                               
brought forward.                                                                                                                
REPRESENTATIVE GRUENBERG opined that  the National Guardsmen were                                                               
killed, but the language in the bill is confusing.                                                                              
CHAIR LEDOUX said she would flag the issue.                                                                                     
REPRESENTATIVE GRUENBERG  commented he  likes the removal  of "or                                                               
criminally," but that is a small step.                                                                                          
2:52:49 PM                                                                                                                    
REPRESENTATIVE GRUENBERG referred to page  55, line 5, and stated                                                               
he would like  the word to remain "Alaskan," and  described it as                                                               
a typographical error.                                                                                                          
2:53:41 PM                                                                                                                    
CHAIR  LEDOUX referred  to Sec.  26.05.460(b)(c), page  13, lines                                                               
16-30, which read:                                                                                                              
          (b) If a general court-martial, other than a                                                                          
     general  court-martial  composed  of  only  a  military                                                                    
     judge,  is reduced  below five  members, the  trial may                                                                    
     not proceed unless the  convening authority assigns new                                                                    
     members sufficient  in number  to restore the  court to                                                                    
     five  members.   The  trial may  proceed  with the  new                                                                    
     members present after  the recorded evidence previously                                                                    
     introduced  before the  members of  the court  has been                                                                    
     read  to the  court  in the  presence  of the  military                                                                    
     judge, the accused, and counsel for both sides.                                                                            
          (c) If a special court-martial, other than a                                                                          
     special  court-martial  composed  of  only  a  military                                                                    
     judge, is  reduced below three  members, the  trial may                                                                    
     not proceed unless the  convening authority details new                                                                    
     members in  sufficient number to  restore the  court to                                                                    
     three members.   The trial  shall proceed with  the new                                                                    
     members present  as if no evidence  had been introduced                                                                    
     previously at  the trial, unless  a verbatim  record of                                                                    
     the evidence  previously introduced before  the members                                                                    
     of the court  or a written stipulation  of the evidence                                                                    
     is read  to the court  in the presence of  the military                                                                    
     judge, the accused, and counsel for both sides.                                                                            
CHAIR  LEDOUX  suggested  following   civilian  court  and  offer                                                               
alternates.   She pointed  out that  new members  cannot actually                                                               
get the "gist"  of the trial by reading  something into evidence,                                                               
as there is  no opportunity to watch a person  and decide whether                                                               
they are being truthful.                                                                                                        
CAPTAIN DUNBAR responded that this  is one of the many provisions                                                               
taken "wholesale"  from the  state model code,  and the  guard is                                                               
open to  alternates.   He related  that the  preference is  for a                                                               
larger pool of people to be  available due to removing people for                                                               
cause, and,  he agreed, the  opportunity to  sit in the  room and                                                               
experience the trial from the  beginning would be easier for them                                                               
to step in as an alternate.                                                                                                     
2:56:11 PM                                                                                                                    
CHAIR  LEDOUX expressed  it  would  not only  be  easier for  the                                                               
person  but she  can't  imagine  a fair  trial  without a  person                                                               
sitting throughout  the testimony and  trial.  Chair  LeDoux then                                                               
referred to  Sec. 26.05.460,  page 13,  beginning line  31, which                                                               
          (d) If the military judge of a court-martial                                                                          
     composed of only a military  judge is unable to proceed                                                                    
     with a trial  because of a challenge or  for other good                                                                    
     cause, the  senior force judge advocate  shall detail a                                                                    
     new military judge.   The trial shall proceed  as if no                                                                    
     evidence  had  previously  been  introduced,  unless  a                                                                    
     verbatim record  of the evidence  previously introduced                                                                    
     or a  written stipulation  of the  evidence is  read in                                                                    
     court in  the presence of  the new military  judge, the                                                                    
     accused, and counsel for both sides.                                                                                       
CHAIR LEDOUX stress  that judges being changed  in mid-stream and                                                               
then  introduce a  record as  opposed to  ... she  said she  just                                                               
cannot see how that can work.                                                                                                   
2:56:48 PM                                                                                                                    
CAPTAIN  DUNBAR replied  he is  not  familiar with  how it  works                                                               
within civilian  courts, and asked  whether there are  always two                                                               
judges at every trial.                                                                                                          
CHAIR LEDOUX answered  that she does not know the  answer to that                                                               
question, but probably it is a mistrial.                                                                                        
REPRESENTATIVE GRUENBERG opined it may be largely discretionary.                                                                
CAPTAIN DUNBAR proffered  that there will be a  challenge to find                                                               
enough  trained military  judges as  this is  a small  population                                                               
state.    With regard  to  the  Military Appeals  Commission,  he                                                               
reiterated, the idea  of alternates there will be  a challenge in                                                               
recruiting and  training enough people  to serve in  those roles.                                                               
He offered  doubt that  there will  be alternate  military judges                                                               
observing trials.                                                                                                               
CHAIR LEDOUX  interjected that she  was not  suggesting alternate                                                               
judges, and not having ever  practiced criminal law does not know                                                               
what  happens should  the  judge  have a  heart  attack during  a                                                               
2:58:29 PM                                                                                                                    
REPRESENTATIVE CLAMAN responded he does  not know the answer of a                                                               
heart attack,  but he  has had  judges take  ill, usually  in the                                                               
midst of jury  deliberations, and another judge  handles the jury                                                               
deliberations.  He  opined the ability to bring  in another judge                                                               
to finish the  trial without starting over would  depend upon the                                                               
timing  and   circumstances.    Whereas,  he   opined,  within  a                                                               
complicated trial  it is  less likely it  would use  a substitute                                                               
judge,  and the  trial would  start over.   He  does not  believe                                                               
there is a standard rule.                                                                                                       
CAPTAIN DUNBAR, in  response to Chair LeDoux,  responded that the                                                               
judges do  not also  act as jurors.   In this  case, the  jury is                                                               
that panel so it is structured differently.                                                                                     
REPRESENTATIVE GRUENBERG  opined there  is a civil  rule covering                                                               
substitution of judges.                                                                                                         
2:59:36 PM                                                                                                                    
CHAIR LEDOUX referred  to Sec. 26.05.485(e), page  20, lines 1-5,                                                               
which read:                                                                                                                     
          (e) If charges or specifications are dismissed as                                                                     
     defective  or  insufficient  for  any  cause,  and  the                                                                    
     period   prescribed  by   the  applicable   statute  of                                                                    
     limitations has expired or will  expire within 180 days                                                                    
     after  the  date  of  dismissal   of  the  charges  and                                                                    
     specifications, trial and  punishment under new charges                                                                    
     and  specifications are  not barred  by the  statute of                                                                    
     limitations if the new charges and specifications                                                                          
CHAIR LEDOUX pointed to it being  a huge loophole, in that if the                                                               
case is falling  apart, it is dismissed in order  to have a whole                                                               
new statute of limitations.                                                                                                     
CAPTAIN  DUNBAR replied  that the  question is  who is  doing the                                                               
dismissal  and if  it  is command  then  it could  be  seen as  a                                                               
loophole, if instead it is  the legal advisor or military judge's                                                               
decision then perhaps it is not such a loophole.                                                                                
3:01:27 PM                                                                                                                    
REPRESENTATIVE GRUENBERG opined that when  within the midst of an                                                               
empaneled jury  criminal trial,  and the  case is  dismissed then                                                               
jeopardy  is  attached  and  prosecution   is  barred  by  double                                                               
CHAIR  LEDOUX reiterated  that the  committee is  flagging issues                                                               
3:02:00 PM                                                                                                                    
CHAIR  LEDOUX referred  to Sec.  26.05.498, Defense  of insanity,                                                               
and asked  whether there  is something in  Alaska law  that reads                                                               
"guilty but insane."                                                                                                            
REPRESENTATIVE  CLAMAN   said  technically  it  is   "guilty  but                                                               
mentally  ill."   In the  olden  days, with  English common  law,                                                               
there  are  two  different  standards for  guilty  by  reason  of                                                               
insanity: the  accused does not  know the meaning and  quality of                                                               
their conduct;  and the  accused understands  the meaning  of the                                                               
quality  of  their  conduct but  cannot  control  themselves,  he                                                               
explained.  He  continued that "guilty but mentally  ill" is when                                                               
the  accused   knows  what  they   are  doing  but   cannot  stop                                                               
themselves; and guilty by reason  of insanity is when the accused                                                               
does not know  what they are doing.  For  example, if the accused                                                               
believes they  are killing a turnip  and the turnip is  in fact a                                                               
person, it is "not guilty by reason of insanity."                                                                               
CHAIR LEDOUX offered "the McNaughton rules."                                                                                    
REPRESENTATIVE CLAMAN said  correct, and there are  two phases of                                                               
CHAIR  LEDOUX said  it is  something  the committee  may want  to                                                               
consider  whether or  not it  wants  to include  the language  of                                                               
"guilty but mentally ill."                                                                                                      
3:03:25 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG   suggested  reading  Chase   v.  State                                                             
wherein a secretary instead of having  ... a person does not know                                                               
the nature  and quality  of their  actions or  does not  know the                                                               
difference  between right  and wrong  -  "they made  you have  to                                                               
prove  them both,  it was  a  typographical error  and the  court                                                               
upheld it."                                                                                                                     
3:03:47 PM                                                                                                                    
CHAIR LEDOUX  referred to Sec.  26.05.5009d0, page 23,  lines 23-                                                               
30, which read:                                                                                                                 
          (d) If, at the end of a period of commitment                                                                          
     under (b)  and (c)  of this  section, it  is determined                                                                    
     that the  accused's mental  condition has  not improved                                                                    
     so  as to  permit  the trial  to  proceed, the  charges                                                                    
     shall  be dismissed  without  prejudice, and  continued                                                                    
     commitment  proceedings   shall  be  governed   by  the                                                                    
     provisions  relating  to   civil  commitment  under  AS                                                                    
     47.30.700  -   47.30.915.    If  the   accused  remains                                                                    
     incompetent for five years after  the charges have been                                                                    
     dismissed under  this subsection,  the accused  may not                                                                    
     be  charged again  for an  offense  under this  chapter                                                                    
     arising  out  of  the facts  alleged  in  the  original                                                                    
CHAIR LEDOUX asked whether that is the same as in criminal law.                                                                 
REPRESENTATIVE  CLAMAN opined  that  the general  theory is  that                                                               
with someone lacking capacity "you  keep sending them back to the                                                               
mental hospital"  and check every six-twelve  months to determine                                                               
whether they've gotten better."                                                                                                 
CHAIR LEDOUX  suggested the committee  may want to  consider this                                                               
3:04:50 PM                                                                                                                    
CHAIR LEDOUX  referred to Sec.  26.05.053(b), page 24,  lines 23-                                                               
30, which read:                                                                                                                 
          (b) The military judge shall rule on all                                                                              
     questions  of  law   and  all  interlocutory  questions                                                                    
     arising during the  proceedings.  A ruling  made by the                                                                    
     military   judge   on  a   question   of   law  or   an                                                                    
     interlocutory  question, other  than the  factual issue                                                                    
     of mental  responsibility of the accused,  is final and                                                                    
     constitutes  the ruling  of the  court.   However,  the                                                                    
     military  judge  may  change the  ruling  at  any  time                                                                    
     during the  trial.   Unless the ruling  is final,  if a                                                                    
     member objects to a ruling,  the court shall be cleared                                                                    
     and  closed, and  the question  shall be  decided by  a                                                                    
     voice  vote and  provided  in  AS 26.05.505,  beginning                                                                    
     with the junior in rank.                                                                                                   
CHAIR LEDOUX  requested clarification as to  whether the military                                                               
judge can  make a  ruling, and  then the  panel can  overrule the                                                               
ruling of the judge.                                                                                                            
CAPTAIN  DUNBAR  responded  this  issue  should  be  flagged  and                                                               
discussed at a later date.                                                                                                      
3:06:10 PM                                                                                                                    
CHAIR LEDOUX  referred to Sec.  26.05.513, page 26,  lines 23-26,                                                               
which read:                                                                                                                     
          (a) ... A sentence of imprisonment imposed under                                                                      
     this  chapter may  not  exceed 10  years.   An  offense                                                                    
     under this chapter for which  a sentence of confinement                                                                    
     for a  term of more  than one  year is authorized  as a                                                                    
     felony offense.   Except for  convictions by  a summary                                                                    
     court-martial  and  except  as  otherwise  specifically                                                                    
     provided  in the  code of  military justice,  all other                                                                    
     offense  under  this  chapter   are  misdemeanors.    A                                                                    
     conviction by a summary court-martial is a violation.                                                                      
CHAIR LEDOUX  stated it  is not  clear in  this bill,  where they                                                               
have authorized confinement  for more than one  year, which would                                                               
require reviewing the Code of Military Conduct.                                                                                 
CHAIR LEDOUX  restated her  question and said  she was  trying to                                                               
determine  the definition  of  misdemeanors  because "an  offense                                                               
under this chapter ... we're  looking at 25.05.513, a sentence of                                                               
imprisonment  imposed  under  this  chapter may  not  exceed  ten                                                               
years.   An offense under  this chapter  for which a  sentence of                                                               
confinement for a  term of more than one year  is authorized as a                                                               
felony," but there is nothing  in this bill describing the length                                                               
of confinement.   She  expressed concern  that nothing  is stated                                                               
within  this   bill,  and  advised  the   committee  that  before                                                               
something  is passed  out, a  felony  and a  misdemeanor must  be                                                               
3:07:50 PM                                                                                                                    
CAPTAIN DUNBAR explained  that the bill caps the  number of years                                                               
at  10 years  as the  maximum authorized,  and due  to subsection                                                               
(b), which may be amended, there  is a charge that will be capped                                                               
either at 10 years or at the  federal cap.  He stated that within                                                               
the bill's system and the federal  and state systems there are no                                                               
minimum sentences, only  maximum sentences.  He  offered that, in                                                               
some cases,  whether it is  a misdemeanor or felony  depends upon                                                               
the nature  of the offense.   For  example, he pointed  out, with                                                               
assault  of  a superior  officer,  or  disrespect to  a  superior                                                               
officer, the  charges are not broken  out in Alaska law  such as,                                                               
Class  C  or  Class  B,  and  different  charges.    Instead,  he                                                               
remarked, there is the overall  charge, and if command charges up                                                               
to the  federal maximum  sentence the charge  is equivalent  to a                                                               
felony charge.                                                                                                                  
CHAIR LEDOUX interjected that  it specifically read specifically:                                                               
"An  offense  under   this  chapter  for  which   a  sentence  of                                                               
confinement for a  term of more than one year  is authorized is a                                                               
felony  offense."    She  opined  that  it  doesn't  matter  what                                                               
sentence someone is given, it's how much they are authorized.                                                                   
3:09:43 PM                                                                                                                    
CAPTAIN  DUNBAR  noted  that  the  confusion  is  with  the  word                                                               
"authorized,"  as the  intent is  not what  is authorized  by the                                                               
statute, it is  what is authorized to the panel  by the commander                                                               
making the  charge.   He reiterated  it is not  what a  person is                                                               
sentenced  to,  the  charge  will   determine  whether  it  is  a                                                               
misdemeanor or  felony.   For example, he  said, "we're  going to                                                               
present you  with this  charge, and we're  saying we're  going to                                                               
try to get a dishonorable discharge and two years in prison."                                                                   
CHAIR  LEDOUX surmised  that when  someone is  charged, they  are                                                               
told how much time that the  National Guard is trying to put them                                                               
in prison,  instead of charging  them with the actual  crime, and                                                               
after their conviction imposing a sentence.                                                                                     
CAPTAIN DUNBAR  advised he  believes that is  the case,  but will                                                               
get back to the committee.                                                                                                      
CHAIR LEDOUX  expressed that she  is uncomfortable with  the idea                                                               
of not setting forth sentences.                                                                                                 
CAPTAIN DUNBAR responded  that no other state  lays out sentences                                                               
for  every offense  in  their code,  and he  will  return with  a                                                               
detailed answer.                                                                                                                
CHAIR LEDOUX replied  that Alaskans don't care how they  do it on                                                               
the outside, and wants to determine  whether it makes sense to do                                                               
it that way, or to address each specific crime with a sentence.                                                                 
3:11:30 PM                                                                                                                    
REPRESENTATIVE  CLAMAN  explained  that  within  the  context  of                                                               
Alaska  criminal  law,  the  maximum  sentence  is  what  defines                                                               
something as a  felony or misdemeanor, and it is  not a function.                                                               
In fact,  in dealing with  the Sentencing Commission  many people                                                               
are  charged  with  felonies  that might  have  a  five-ten  year                                                               
maximum sentence  or an unlimited  sentence.  He stated  that the                                                               
question  of what  a person  may be  sentenced to  may often  be,                                                               
especially in  the lower  grade felonies, much  less than  a year                                                               
and are  still charged with  a felony based  on the maximum.   He                                                               
said this  provision is  basically saying  anything in  which ...                                                               
that the  maximum sentence is 10  years.  Those are  all felonies                                                               
except if it specifically said the maximum sentence is a year.                                                                  
CHAIR LEDOUX corrected  Representative Claman in that  it is less                                                               
than a year.                                                                                                                    
REPRESENTATIVE CLAMAN agreed and said "or  a year, or less than a                                                               
3:12:41 PM                                                                                                                    
CHAIR LEDOUX  referred to  Sec. 26.05.588,  page 38,  lines 5-10,                                                               
which read:                                                                                                                     
         A commissioned officer of the militia who uses                                                                         
        contemptuous words against the President or Vice-                                                                       
     President  of  the  United States,  the  United  States                                                                    
     Congress, the  United States Secretary of  Defense, the                                                                    
     United  States  Secretary  of  Homeland  Security,  the                                                                    
     secretary  of  a  military  department  of  the  United                                                                    
     States, or  the governor  or legislature of  this state                                                                    
     shall be punished as a court-martial may direct.                                                                           
CHAIR LEDOUX  pointed out  that the list  of people  includes the                                                               
governor of  the state  and the legislature,  and noted  that the                                                               
bill  defines a  person  as  being a  soldier  24/7,  as well  as                                                               
volunteers  making up  the  state  defense force.    She posed  a                                                               
scenario  of someone  writing  on their  Facebook  page that  the                                                               
legislature  is  a  bunch  of  yahoos  for  spending  $91,000  in                                                               
attending a conference,  and asked whether that  will subject the                                                               
person to a court-martial.                                                                                                      
CAPTAIN DUNBAR replied there is  precedence, arising often on the                                                               
federal side  such as, during  President Bill  Clinton, President                                                               
George  Bush,  and   President  Barack  Obama's  administrations.                                                               
There are standards, not just  that they were yahoos in attending                                                               
a conference  as, he opined, it  would not hit the  threshold for                                                               
contemptuous, which is  more severe.  He noted  that the language                                                               
refers  to  commissioned  officers,   which  does  not  apply  to                                                               
enlisted people in the force.                                                                                                   
CHAIR  LEDOUX interjected  that  it would  apply  to the  officer                                                               
3:14:35 PM                                                                                                                    
CAPTAIN DUNBAR agreed, and offered  another precedence in that if                                                               
contemptuous language  is used in  a private  conversation, there                                                               
would be  evidentiary concerns, and the  language typically would                                                               
not qualify.   He  said it  refers to very  strong comments  in a                                                               
public forum.                                                                                                                   
CHAIR LEDOUX argued that is Facebook.                                                                                           
CAPTAIN  DUNBAR offered  that Facebook  is  probably where  these                                                               
cases will arise, and where they  been arising in other states on                                                               
the federal  level.   He related that  a commissioned  officer is                                                               
free to  disagree passionately with  the governor  or legislature                                                               
on  certain  issues,  but  cannot use  contemptuous  words.    He                                                               
stressed that  the officer is  held to  the standard of  being an                                                               
officer and a gentleman.                                                                                                        
CHAIR LEDOUX asked the definition of contemptuous words.                                                                        
CAPTAIN DUNBAR  remarked that  he does not  have the  standard of                                                               
contemptuous words, and  doubts that "the legislature  is a bunch                                                               
of yahoos" is included.                                                                                                         
3:15:59 PM                                                                                                                    
CHAIR LEDOUX  referred to  Sec. 26.05.599,  page 40,  lines 8-10,                                                               
which read:                                                                                                                     
          A member of the militia is guilty of misbehavior                                                                      
     before  the enemy  if the  member is  before or  in the                                                                    
     presence  of  the  enemy,  or is  facing  a  threat  as                                                                    
     described in AS 26.05.070 and                                                                                              
CHAIR  LEDOUX  asked  whether  these  people  have  already  been                                                               
CAPTAIN DUNBAR  answered yes, in  most cases.  He  described long                                                               
discussions within  the Commanders  Action Group about  this, and                                                               
other  similar provisions,  dealing with  situations wherein  the                                                               
vast  majority  of cases  a  person  is  fully federalized.    He                                                               
explained the person is under Title  10, and subject to a federal                                                               
UCMJ,  not the  ACMJ.   He  related that  Sgt.  Bowe Bergdahl  is                                                               
charged with  the rare  charge of  misbehavior before  the enemy.                                                               
He said  the Commanders Action Group  intentionally changed these                                                               
provisions so  they would  be more applicable  to the  real world                                                               
whereby  "we" would  not necessarily  be fully  federalized.   He                                                               
pointed to  line 10, "or  is facing a  threat as described  in AS                                                               
26.05.070,"  refers  to  already  existing  state  law  regarding                                                               
natural disasters,  riots, and  gang violence.   In  that regard,                                                               
the  Commanders Action  Group attempted  to slightly  expand this                                                               
provision and others, so it  would be applicable in circumstances                                                               
where "we" are not fully federalized.                                                                                           
3:18:23 PM                                                                                                                    
CHAIR LEDOUX  referred to Sec.  26.05.609, page 42,  lines 17-21,                                                               
which read:                                                                                                                     
          A member of the militia who, while on active                                                                          
     duty,  wilfully   or  recklessly  wastes,   spoils,  or                                                                    
     otherwise wilfully and wrongly  destroys or damages any                                                                    
     property  other than  military property  of the  United                                                                    
     States or of  any state, shall be punished  as a court-                                                                    
     martial may direct.                                                                                                        
CHAIR  LEDOUX  referred  to  "while on  active  duty"  and  asked                                                               
whether that means they are federalized.                                                                                        
CAPTAIN DUNBAR responded  that was language taken  from the state                                                               
model code which  means it cannot refer to  being federalized, it                                                               
is state active duty, and Title 32.                                                                                             
3:18:53 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG referred  to Sec.  26.05.610, page  42,                                                               
lines 22-25, which read:                                                                                                        
          A member of the militia who wilfully, wrongfully,                                                                     
     or  with  gross negligence  hazards  or  suffers to  be                                                                    
     hazarded a  vessel of  the armed  forces of  the United                                                                    
     States or  the militia  of the  state shall  suffer the                                                                    
     punishment as a court-martial may direct.                                                                                  
REPRESENTATIVE  GRUENBERG  suggested  amending  the  language  to                                                               
include vehicle  or airplane,  as there is  not a  naval National                                                               
CAPTAIN DUNBAR offered  that there is a  naval militia authorized                                                               
by statute, but it is not currently active.                                                                                     
REPRESENTATIVE  GRUENBERG  related  that  it  is  more  likely  a                                                               
service member would hazard a jeep as opposed to a vessel.                                                                      
3:19:35 PM                                                                                                                    
CHAIR LEDOUX  referred to Sec.  26.05.614, page 44,  lines 15-17,                                                               
which read:                                                                                                                     
       (b) In this section, "controlled substance" means                                                                        
            (1) opium, heroin, cocaine, amphetamine,                                                                            
    lysergic     acid    diethylamide,     methamphetamine,                                                                     
     phencyclidine, barbituric acid, and marijuana;                                                                             
CHAIR LEDOUX  pointed to  a provision  within Alaska  Statute and                                                               
said that,  "Nothwithstanding any other  section of the  law that                                                               
possession of less  than one ounce of marijuana is  not a crime."                                                               
She assumed from the employer's  viewpoint it can dictate whether                                                               
or  not people  partake of  drugs,  which would  be the  National                                                               
Guard's  nonjudicial  punishment  or  administrative  separation.                                                               
She questioned how someone can  be court-martialed and subject to                                                               
imprisonment for doing  something which is now  legal under state                                                               
REPRESENTATIVE  LYNN offered  that state  law is  one thing,  and                                                               
National Guard regulation is another.                                                                                           
CHAIR LEDOUX  argued that  the National  Guard is  a quasi-state,                                                               
quasi-federal entity, and the bill is under 24/7.                                                                               
REPRESENTATIVE  GRUENBERG posed  a scenario  of a  person smoking                                                               
marijuana in Colorado,  and asked whether the  National Guard can                                                               
3:21:57 PM                                                                                                                    
CAPTAIN  DUNBAR  referenced  Representative  Gruenberg's  earlier                                                               
point regarding whether  the Alaska National Guard  can reach out                                                               
to other  states when not on  orders.  He explained  that command                                                               
believes  certain behaviors  are incompatible  with the  National                                                               
Guard service,  although it is  a right given to  other Alaskans.                                                               
A person  cannot use marijuana  and serve in the  National Guard,                                                               
which  is  more an  administrative  issue,  than a  court-martial                                                               
3:22:33 PM                                                                                                                    
CHAIR  LEDOUX referred  to Sec.  26.05.617, page  45, lines  4-6,                                                               
which read:                                                                                                                     
         A member of the militia who uses provoking or                                                                          
      reproachable words or gestures toward another member                                                                      
      of the militia shall be punished as a court-martial                                                                       
     may direct.                                                                                                                
CHAIR LEDOUX  asked the definition of  "provoking or reproachable                                                               
words  or gestures  toward another  member of  the militia,"  and                                                               
noted this is not just the officer corps.                                                                                       
CAPTAIN  DUNBAR  said he  will  provide  the committee  with  the                                                               
definition, and  noted it is  a standard military  offense within                                                               
the state and federal model codes.                                                                                              
3:23:49 PM                                                                                                                    
CHAIR LEDOUX referred  to Sec. 26.05.622(c), page  49, lines 5-7,                                                               
which read:                                                                                                                     
          (c) A member of the militia who intentionally                                                                         
     exposes, in  an indecent  manner, the  genitalia, anus,                                                                    
     buttocks,  or  female areola  or  nipple  is guilty  of                                                                    
       indecent exposure and shall be punished as a court-                                                                      
     marshal may direct.                                                                                                        
CHAIR LEDOUX  referred to the  nude beaches in Hawaii,  and asked                                                               
whether a  member of  the militia is  subject to  a court-martial                                                               
when attending a nude beach in Hawaii.                                                                                          
CAPTAIN  DUNBAR advised  he  does  not have  a  good answer,  but                                                               
opined it would go to  the term "indecent manner," although, when                                                               
attending  a nude  beach  the  person is,  in  theory, not  being                                                               
indecent.    He  expressed  his  confidence  that  a  good  Judge                                                               
Advocate  could  prevent  that soldier  from  being  successfully                                                               
REPRESENTATIVE LYNN  asked whether  it is indecent  exposure when                                                               
in the shower.                                                                                                                  
3:25:25 PM                                                                                                                    
CHAIR LEDOUX  referred to  Sec. 26.05.633,  page 52,  lines 9-11,                                                               
which read:                                                                                                                     
          A commissioned officer, cadet, candidate, or                                                                          
     midshipman of the militia who is convicted of conduct                                                                      
       unbecoming an officer shall be punished as a court-                                                                      
     martial may direct.                                                                                                        
CHAIR  LEDOUX  expressed  that   conduct  unbecoming  an  officer                                                               
language is too nebulous to allow  a prison sentence.  She asked,                                                               
while  understanding  certain  things more  unacceptable  in  the                                                               
military, whether  it includes adultery  or fooling around.   She                                                               
expressed  she  does  not  have  a  problem  with  administrative                                                               
separation, or nonjudicial punishment,  but when actually putting                                                               
someone in jail  specifics must be set out as  to what the person                                                               
cannot do.                                                                                                                      
3:26:38 PM                                                                                                                    
CHAIR LEDOUX then  referred to Sec. 26.05.634(c),  page 52, lines                                                               
21-22, which read:                                                                                                              
        (c) A court-martial may not impose a sentence of                                                                        
     confinement under (a) or (b) of this section.                                                                              
CHAIR  LEDOUX pointed  out that  Section  26.05.634(c) should  be                                                               
applicable to Sec. 26.05.633, also.                                                                                             
CAPTAIN  DUNBAR answered  that he  will discuss  that issue  with                                                               
command, and in  the example "adultery - that kind  of thing," it                                                               
is true it should not result  in a period of confinement as those                                                               
cases would  generally be prosecuted  under the  general article,                                                               
where  the protection  is  include.   He  pointed  to the  recent                                                               
scandal  and  behavior with  the  high  school students,  and  if                                                               
"they" had  been officers  is the  type of  behavior that  may be                                                               
prosecuted.   In that  case, he said,  under civilian  law sexual                                                               
assault  was not  committed if  "they" were  have consensual  sex                                                               
with a high  school student, and they were of  age.  He explained                                                               
"they"  violated  prohibition  on   recruiters  having  sex  with                                                               
recruits, and engaging in behavior  command would consider beyond                                                               
the pale ...                                                                                                                    
CHAIR LEDOUX  interjected that there  are not things  that should                                                               
be  covered,  rather that  it  must  be  set out  before  putting                                                               
someone  in jail.    In the  event the  National  Guard wants  to                                                               
include  adultery,  having  sex  with high  school  students,  or                                                               
whatever, put  it into  the statute.   Possibly farther  down the                                                               
road the  National Guard  may realize an  offense that  should be                                                               
covered by a statute, and amend that statute, she related.                                                                      
3:29:04 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG asked  whether the  National Guard  has                                                               
ever had warrant officers.                                                                                                      
CAPTAIN DUNBAR responded yes, on the Army National Guard side.                                                                  
REPRESENTATIVE  GRUENBERG  suggested including  warrant  officers                                                               
within the definition in Sec. 26.05.633.                                                                                        
CAPTAIN DUNBAR  opined that  the issue  was discussed  within the                                                               
Commanders Action  Group, but does  not recall the  exact thought                                                               
process other than it was not inserted.                                                                                         
CHAIR LEDOUX  opened public testimony  and advised there  will be                                                               
another hearing prior to the beginning of the second session.                                                                   
3:31:33 PM                                                                                                                    
PETER SAVAGE,  Lieutenant Colonel, Alaska National  Guard, (Army,                                                               
ret.), described the  bill as a good boilerplate,  and pointed to                                                               
the need for a  soldier or officer code of conduct.   He said his                                                               
suggestion relates  across a broad  gamut of issues of  the past,                                                               
such  as: how  boards are  run; nepotism  problems continuing  to                                                               
today; and the  appeal process of issues within  the structure of                                                               
the National Guard,  which should be clarified.   There have been                                                               
nepotism problems in the past  and, he stated, nepotism continues                                                               
to  occur with  the senior  leadership, and  needs to  be nipped.                                                               
Issues relating to  the National Guard have  been brought forward                                                               
by  other people,  but  in specifically  addressing  the code  of                                                               
conduct  of senior  officials is  paramount in  how they  conduct                                                               
themselves in the future, he stressed                                                                                           
REPRESENTATIVE  GRUENBERG asked  whether  the  ombudsman has  any                                                               
jurisdiction in this area.                                                                                                      
MR. SAVAGE responded "Not to my knowledge."                                                                                     
REPRESENTATIVE GRUENBERG suggested reviewing that issue.                                                                        
3:33:54 PM                                                                                                                    
CHAIR LEDOUX asked the issues Mr.  Savage would address in a code                                                               
of conduct.                                                                                                                     
MR. SAVAGE answered  there are a number of  procedural issues and                                                               
actual  events  that  require  review   in  terms  of  the  force                                                               
structure itself.  He offered  the following issues: nepotism, or                                                               
his term "dual  spousal affiliation," when senior  leaders have a                                                               
family  member  within the  organization  that  can influence  or                                                               
"cherry pick"  senior officers  to do  their bidding;  and issues                                                               
with  promotion boards  and how  they are  conducted in  terms of                                                               
officer  evaluations  and  the  issue  of  evaluation  not  being                                                               
performed on  a timely  basis when they  are required  by federal                                                               
statute  "just prior  to boards,  federal  boards, and  promotion                                                               
boards, and  selection and retention  boards."   He  related that                                                               
these  issues  are  critical  in   not  performing  an  officer's                                                               
evaluation as "... it allows that  a federal board to come in and                                                               
see that there is no evaluation  done and that automatically is a                                                               
flag  for anybody  getting  promoted, or  seeking  a position  of                                                               
higher authority, or  it can even affect an  officer's ability to                                                               
go  to   school."    He   stressed  the  importance   of  officer                                                               
evaluations being  completed on time and  correctly, as sometimes                                                               
they  are not.   He  explained that  sometimes the  board officer                                                               
evaluation ... "the  senior raters and the raters  ... there used                                                               
to  be a  published ...  published criteria  required that  these                                                               
rating chains were above board,  sometimes they are not, but they                                                               
need to be."                                                                                                                    
3:36:01 PM                                                                                                                    
MR.  SAVAGE  continued  that  other  issues  relate  to  turnover                                                               
especially among  senior leadership in that  consideration should                                                               
be taken  in limiting the amount  of time senior leaders  stay in                                                               
position, sometimes they come in as  "06" and have 10 years left.                                                               
We  cannot allow  some of  these people  to have  10 years  in an                                                               
organization  that  may  not  be  competent,  or  may  not  allow                                                               
subordinates  to come  up through  the chain  of command  because                                                               
they do  not want to  leave.  He  offered concern with  regard to                                                               
senior leaders (06 and above) need  to leave after three years of                                                               
service of being  in the full force.  Issues  with E9s, which are                                                               
sergeant majors  need to  leave after three  years at  the senior                                                               
level and allow  others to advance in the  organization, he said.                                                               
Other issues  must be addressed  in a  long term code  of conduct                                                               
and policy  issues on how  the guard is run.   He said,  "I don't                                                               
know if people  knew the total issue with the  appointment of the                                                               
new tag, and the connection of  the full time individual that was                                                               
also a  member of  the guard, at  the time that  was done  it was                                                               
also a married  individual ... you know ... to  the current tag."                                                               
He  described  these  as  long   term  systemic  problems  to  be                                                               
addressed  in a  code of  conduct, basically  it is  a leadership                                                               
issue that needs to be addressed in writing.                                                                                    
3:38:23 PM                                                                                                                    
REPRESENTATIVE  KELLER asked  whether  the National  Guard has  a                                                               
code of conduct in other states.                                                                                                
MR.  SAVAGE answered  that the  National  Guard Bureau  generally                                                               
stays  out of  issues and  hands out  money, rather  than dealing                                                               
with  legal issues  it leaves  it to  the Alaska  legislature and                                                               
governor.   He  pointed out  that the  governor is  commander-in-                                                               
chief  within   a  peacetime  environment  until   the  state  is                                                               
federalized, and it becomes the President of the United States.                                                                 
3:39:05 PM                                                                                                                    
CHAIR LEDOUX  reminded the committee  she put this bill  forth as                                                               
chair of the  House Judiciary Standing Committee  and believes it                                                               
is a good bill.                                                                                                                 
MR. SAVAGE stated it is a boilerplate and a good place to start.                                                                
CHAIR LEDOUX continued  that she does not want this  bill to pass                                                               
with everyone believing that all  of the problems of the National                                                               
Guard are solved.  She advised  her intention is to speak further                                                               
with Mr. Savage,  and anyone willing to speak with  her about the                                                               
issues in  an attempt  to create a  bill addressing  the systemic                                                               
problem seen previously in the National Guard.                                                                                  
3:40:55 PM                                                                                                                    
REPRESENTATIVE GRUENBERG referred to  Sec. 26.05.634(a), page 52,                                                               
lines 12-16, which read:                                                                                                        
          (a) Although not specifically mentioned in this                                                                       
     chapter,  all disorders  and acts  that prejudice  good                                                                    
     order and  discipline in the  militia of the  state and                                                                    
     all  conduct of  a  nature to  bring  discredit on  the                                                                    
      militia of the state shall be considered by a court-                                                                      
      martial and punished at the discretion of a military                                                                      
REPRESENTATIVE  GRUENBERG  opined  the phrases  are  "phrases  of                                                               
CAPTAIN DUNBAR agreed and said  they are well defined legal terms                                                               
with a long history in the military.                                                                                            
REPRESENTATIVE  GRUENBERG offered  that it,  and Sec.  26.05.633,                                                               
can lead to  discretion with the charging authority.   He pointed                                                               
out that many  members of the committee are lawyers  who do often                                                               
see  "loose" language  in  the law,  as  it is  unconstitutional,                                                               
vague and standard-less, and would  be struck down as a violation                                                               
of substantive due process.                                                                                                     
CAPTAIN   DUNBAR  pushed   back  on   the  notion   that  it   is                                                               
constitutionally or  unconstitutionally vague for the  reasons of                                                               
Representative  Gruenberg's  comments.    He added  that  if  the                                                               
language was  in another criminal  statute it probably  would be,                                                               
except it  is in  the military statute  with a  specific military                                                               
meaning.   He  referred to  the provision  added by  Chair LeDoux                                                               
wherein  there  is no  sentence  of  confinement, also  helps  to                                                               
alleviate those  concerns.  He  explained the general  article is                                                               
within the state  model code, and every other  state's version of                                                               
its state codes.                                                                                                                
REPRESENTATIVE GRUENBERG  argued that this deals  with punishment                                                               
as  a   discretion  of  a   military  court   and  court-martial,                                                               
therefore,  it  is  a  court-martial  unless  there  is  language                                                               
stating a person cannot be confined.                                                                                            
CAPTAIN DUNBAR offered that (c) was added by Chair LeDoux.                                                                      
REPRESENTATIVE GRUENBERG related that  the legislature is dealing                                                               
with this  bill which is  different from dealing with  the court,                                                               
and  lawyers generally  judge standards  by courts.   He  said in                                                               
this case  the legislature's standard is  not necessarily similar                                                               
to the court's standard.                                                                                                        
3:45:00 PM                                                                                                                    
CHAIR LEDOUX  referred to Sec.  26.05.900, page 53,  lines 20-21,                                                               
which read:                                                                                                                     
            (9) "day" means calendar day and is not                                                                             
     synonymous with the term "unit training assembly";                                                                         
CHAIR  LEDOUX  questioned whether  this  may  be a  typographical                                                               
CAPTAIN  DUNBAR explained  it is  not a  typographical error,  in                                                               
that a unit training assembly  is how the National Guard measures                                                               
"days for pay" in the military.   For example, he said, a typical                                                               
drill weekend  is two  calendar days,  but is  actually typically                                                               
four unit training assemblies.                                                                                                  
CHAIR LEDOUX  announced the bill  will be held in  committee, and                                                               
noted  the  committee  is looking  forward  to  putting  together                                                               
"something  else"  dealing with  the  other  problems within  the                                                               
National Guard.                                                                                                                 
3:47:01 PM                                                                                                                    

Document Name Date/Time Subjects
HB 126-CS Version P.pdf HJUD 9/22/2015 1:30:00 PM
HB 126
HB 126-CS Version P-Sectional Analysis.pdf HJUD 9/22/2015 1:30:00 PM
HB 126
HB 126-CS Version P-Memo.pdf HJUD 9/22/2015 1:30:00 PM
HB 126
HB 126-CS Version P-Presentation.pdf HJUD 9/22/2015 1:30:00 PM
HB 126
HB 126-CS Version P-Savage Comments.pdf HJUD 9/22/2015 1:30:00 PM
HB 126
HB 126-CS Version I.pdf HJUD 9/22/2015 1:30:00 PM
HB 126
HB 126-CS Version N-Memo.pdf HJUD 9/22/2015 1:30:00 PM
HB 126
HB 126-CS Version N.pdf HJUD 9/22/2015 1:30:00 PM
HB 126
HB 126-CS Version I-Memo.pdf HJUD 9/22/2015 1:30:00 PM
HB 126