Legislature(2015 - 2016)ANCH LIO AUDITORIUM

11/17/2015 01:30 PM House JUDICIARY

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01:54:21 PM Start
01:55:24 PM HB126
04:02:38 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held - Assigned to Subcommittee
-- Public & Invited Testimony --
            HB 126-CODE OF MILITARY JUSTICE; APPEALS                                                                        
1:56:01 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 committee substitute (CS)  for HB 126,                                                               
Version 29-LS0473\I, Wallace, 9/18/15.]                                                                                         
1:56:15 PM                                                                                                                    
REPRESENTATIVE  CLAMAN moved  to adopt  the committee  substitute                                                               
(CS) for  HB 126, Version  29-LS0473\G, Wallace, 11/41/5,  as the                                                               
working  document.   There  being  no  objection, Version  G  was                                                               
before the committee.                                                                                                           
CHAIR LEDOUX advised that contained  within the committee packets                                                               
are: CSHB 126, Version G,  that includes changes discussed during                                                               
the previous  meeting regarding Version I;  Version G Memorandum,                                                               
[dated  11/4/15,   from  Megan  A.  Wallace];   Captain  Dunbar's                                                               
presentation; and a Maximum Punishments Matrix of this bill.                                                                    
1:57:41 PM                                                                                                                    
FORREST   DUNBAR,   Captain/Assistant  Judge   Advocate,   Alaska                                                               
National Guard, noted that subsequent  to amendments made to CSHB
12, the Alaska  National Guard (AKNG) is "pretty  happy with it."                                                               
He turned to slide 1 of  his power point presentation and advised                                                               
that after the  previous meeting he briefed the  bill to Governor                                                               
Bill Walker  who was pleased  with the  work, and noted  that the                                                               
bill continues  to be a  high priority for the  adjutant general.                                                               
He advised  a "Red Team"  was then formed comprised  of soldiers,                                                               
airmen, officers  and enlisted guard members,  and explained that                                                               
they  review the  nonjudicial  punishment  regulations with  "war                                                               
game"  scenarios  to  ascertain   how  the  regulations  work  in                                                               
practice.  He said the Red  Team meets weekly and their scenarios                                                               
have included:  drug use, inappropriate relationships,  AWOL, and                                                               
sexual assault.                                                                                                                 
CAPTAIN  DUNBAR  turned to  slide  2,  referring to  the  Maximum                                                               
Punishments  Matrix,  and said  the  most  significant change  in                                                               
Version  G is  the  maximum offense  attached  to every  punitive                                                               
article.   He explained that  the matrix indicates  the potential                                                               
maximum punishment of the Alaska  Code of Military Justice (ACMJ)                                                               
versus the  potential maximum punishment  of the  Federal Uniform                                                               
Code of Military  Justice (UCMJ).  He noted that  in almost every                                                               
case,   the  potential   penalty  under   the  Federal   UCMJ  is                                                               
significantly more  severe than  the ACMJ.   A policy  choice was                                                               
made  to  not   pursue  the  more  severe   cases  or  penalties;                                                               
therefore,  many offenses  are  essentially  misdemeanors with  a                                                               
maximum  of one  year imprisonment,  and  they do  not impanel  a                                                               
grand jury,  he explained.   The reality  is, he noted,  that the                                                               
most  severe misbehaviors  lead to  civilian charges,  or in  the                                                               
cases of  a death  penalty on  the federal side  is usually  in a                                                               
time of war and a soldier is in Title 10 status.                                                                                
CHAIR LEDOUX  pointed out that  throughout CSHB 126, many  of the                                                               
misdemeanor  charges   result  in   the  maximum  penalty   of  a                                                               
dishonorable discharge.                                                                                                         
CAPTAIN  DUNBAR  explained  that  there   are  only  one  or  two                                                               
provisions  where  the  Federal  UCJM calls  for  a  bad  conduct                                                               
discharge and  the ACMJ calls  for a dishonorable discharge.   He                                                               
reiterated  that  there  are  five levels  of  discharge  with  a                                                               
dishonorable  being the  most severe.   He  pointed out  that the                                                               
bill reads  that a  service member  does not have  to be  given a                                                               
dishonorable  as it  reads "up  to a  dishonorable," in  that the                                                               
real  piece  of  the  charge   is  the  ability  to  determine  a                                                               
dishonorable discharge.   He stressed that "never  in the history                                                               
of this guard  has a dishonorable discharge been  given out," and                                                               
the portion of  the maximum punishment more likely to  be used is                                                               
the discharge provision.                                                                                                        
CHAIR  LEDOUX  questioned whether  under  current  law, during  a                                                               
National   Guard  proceeding   a  person   can  be   dishonorably                                                               
CAPTAIN DUNBAR responded  no, currently it is  impossible for the                                                               
National  Guard  to  give  a dishonorable  discharge  or  a  "bad                                                               
conduct discharge," and  the most severe form of  discharge is an                                                               
"other than  honorable discharge."   That is most severe  type of                                                               
discharge  available under  an administrative  hearing which,  he                                                               
described,  is not  a slap  on  the wrist  as the  person can  be                                                               
discharged from  the military, lose  retirement, and  busted down                                                               
to E-1.                                                                                                                         
2:05:37 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  referred   to  the  interplay  between                                                               
proceeding  under  this new  code  of  conduct and  the  civilian                                                               
sphere,  and asked  whether Captain  Dunbar had  contemplated the                                                               
two sovereigns  working together.   Obviously, he  explained, the                                                               
defense has many discovery rights  of the prosecution, and not so                                                               
much  vice versa.    However, he  commented,  if this  proceeding                                                               
could be done and then  terminated there would be great discovery                                                               
to go forward in the civilian sphere                                                                                            
CAPTAIN  DUNBAR replied  that there  have been  discussions about                                                               
how  prosecutors in  the adjutant  general's office  and civilian                                                               
side would share information.   The Office of the Provost Marshal                                                               
has  been   established  to   coordinate  between   civilian  law                                                               
enforcement and the  guard.  There is only one  sovereign in this                                                               
case because  it is all under  state law and, he  reiterated from                                                               
prior  meetings  that  there  is a  "double  jeopardy"  issue  if                                                               
jeopardy  attaches on  either side  under these  laws, the  other                                                               
side is precluded and that is not  the case if there is a federal                                                               
charge.    He opined  that  for  charges cognizable  in  civilian                                                               
courts,  the guard  expects the  vast  majority of  investigation                                                               
will be performed  by civilians as civilian  prosecutors have the                                                               
ability  to  investigate better  than  the  National Guard.    He                                                               
pointed  to  Sec.  26.05.400 "Statement  of  policy  on  military                                                               
justice," [page 3, lines 16-23], which read:                                                                                    
     Courts-martial have primary  jurisdiction over offenses                                                                    
     under  this chapter,  except when  an  act of  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.                                                                                      
CAPTAIN DUNBAR  said it clearly states  that civilian prosecutors                                                               
have the right of first refusal in the prosecution of a case.                                                                   
2:08:40 PM                                                                                                                    
CHAIR LEDOUX  offered a scenario  of a sexual assault  that would                                                               
go before a  grand jury, and that all  exculpatory evidence would                                                               
have to  be produced.   The civilian  court refused  to prosecute                                                               
presumably because there is evidence  in the file showing they do                                                               
not have  much of  a chance  of winning and,  she asked  how that                                                               
would work in front of the grand jury.                                                                                          
CAPTAIN  DUNBAR advised  that the  National  Guard's standard  of                                                               
proof in courts-martial is "beyond  a reasonable doubt" and if it                                                               
was sexual assault and the  civilian prosecutors felt they didn't                                                               
have the evidence to proceed, it  is very unlikely the AKNG would                                                               
proceed,  although,  it  may proceed  with  a  different  charge.                                                               
Primarily,  he explained,  cases where  the AKNG  envisions going                                                               
forward  are  primarily  cases   where  the  civilians  primarily                                                               
decided not  to pursue for  reasons of resource constraints.   He                                                               
admitted  that  may  not  be   a  realistic  scenario  given  how                                                               
aggressively  Alaska pursues  sexual assaults,  and the  National                                                               
Guard  does not  have  the same  expertise  in prosecuting  these                                                               
2:10:59 PM                                                                                                                    
CHAIR LEDOUX surmised that this  allows the AKNG to proceed where                                                               
it concluded  independently that the civilian  prosecutor is just                                                               
CAPTAIN DUNBAR  replied not necessarily  wrong, but  the civilian                                                               
prosecution decided,  for whatever  reason, it will  not proceed.                                                               
He explained  that having the  provision in the  punitive article                                                               
means the military  can go forward with  a nonjudicial punishment                                                               
even  as  the  civilians  move  forward  with  their  prosecution                                                               
without  concern of  double  jeopardy.   He  conveyed that  "some                                                               
things that  we don't envision  actually court  martialing people                                                               
on,  we  might  still  want  in  the  code  so  we  can  use  the                                                               
nonjudicial punishment provisions."                                                                                             
2:11:55 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG asked  whether the  AKNG had  discussed                                                               
any other reasons  that it may decide to pursue  a case under the                                                               
Alaska Code  of Military Justice  (ACMJ) rather than  through the                                                               
state  in that  the military  may have  easier access  to certain                                                               
witnesses, federal agencies, or laboratories.                                                                                   
CAPTAIN DUNBAR  offered that the  discussions concluded  that the                                                               
civilian  authorities have  better  access to  resources in  that                                                               
inactive and  active witnesses can  be compelled to attend.   The                                                               
federal military  has access to  these resources and  the ability                                                               
to fly  around the  globe, and  it is not  clear that  the Alaska                                                               
National Guard  (AKNG) has that  access.   He said in  most cases                                                               
where the military  contemplates pursuing a charge,  it is either                                                               
because  it is  a military  charge, or  the civilian  authorities                                                               
have affirmatively stated they are  not pursuing.  In most cases,                                                               
he said,  if there  is something cognizable  in both  realms, the                                                               
military wants civilians to prosecute the cases.                                                                                
REPRESENTATIVE  GRUENBERG   offered  a  situation   with  command                                                               
pressure and  for a valid  reason militarily, a desire  to pursue                                                               
the  case.   He suggested  reviewing  this from  all corners  and                                                               
consider things  that have not  been considered because  they are                                                               
two different worlds.                                                                                                           
CAPTAIN DUNBAR answered that it  is possible, but not likely, the                                                               
AKNG will want  to take cases and would have  to ask the civilian                                                               
prosecutors not to  pursue.  He offered that  the guard envisions                                                               
that  crimes that  can be  prosecuted in  civilian court  will be                                                               
prosecuted in civilian court.  Due  to the provision, it would be                                                               
on  the  AKNG  to  work  closely  with  civilian  prosecutors  to                                                               
ascertain affirmatively that  they are not pursuing  the case and                                                               
the civilian prosecutors would like the military to do so.                                                                      
2:16:04 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  said  "You're in  a  situation  where,                                                               
because of personalities involved, it  could work either way that                                                               
you've  got somebody  on  the  civilian side  who  is a  'runner-                                                               
gunner' and  wants the  case or  vice versa."   He  described the                                                               
Alaska National Guard  (AKNG) as fortunate in that  these are two                                                               
departments in  the same state  system and the governor  would be                                                               
the ultimate determiner.                                                                                                        
CAPTAIN DUNBAR  responded yes, ultimately all  authority for both                                                               
the Department of  Law and the AKNG goes back  up to the governor                                                               
as the commander-in-chief.  He  stressed that within the military                                                               
context,  command   pressure  is   forbidden  by  its   laws  and                                                               
regulations in that  a lower level commander  cannot be pressured                                                               
to prosecute  someone.   He explained the  procedure would  be to                                                               
"reserve  the case  to yourself,  you can  draw that  case up  to                                                               
yourself  and  then you  can  prosecute  it  yourself.   So,  the                                                               
adjutant  general  could  pursue  a   case  that  a  lower  level                                                               
commander  didn't want  to, but  you cannot  order a  lower level                                                               
commander to prosecute someone."                                                                                                
REPRESENTATIVE  GRUENBERG  suggested  that in  pursing  CSHB  126                                                               
through   the  legislature   there  may   be  people   requesting                                                               
clarification on  that issue  as legislators  want to  be certain                                                               
that everyone knows how potential disputes will be resolved.                                                                    
2:17:49 PM                                                                                                                    
CAPTAIN  DUNBAR continued  his presentation  and referred  to the                                                               
9/22/15  discussion regarding  the scenario  of a  service member                                                               
being  in another  state,  not  on orders,  and  misbehaves.   He                                                               
advised it was never the intention  of the AKNG to pursue people,                                                               
not  on orders,  misbehaving  in another  state.   Currently,  he                                                               
explained, the statute reads that if  a member is in the State of                                                               
Alaska  regardless of  being on  active duty  orders or  not, the                                                               
member is  subject to the  Alaska National  Guard's jurisdiction.                                                               
Also, the  Alaska National Guard  (AKNG) has jurisdiction  over a                                                               
member  on  active  duty  orders  traveling  outside  the  state.                                                               
Presumably, he  said, the misbehaving  member not on  active duty                                                               
orders would be under the criminal laws of that state.                                                                          
REPRESENTATIVE GRUENBERG offered a scenario  of a member being on                                                               
temporary duty  to the South  Dakota National Guard and  beats up                                                               
another  person, would  there technically  be jurisdiction  under                                                               
Version G, in Alaska or South Dakota.                                                                                           
CAPTAIN  DUNBAR  responded that  assuming  it  was something  the                                                               
Alaska  National   Guard  (AKNG)  could  pursue   it  would  have                                                               
jurisdiction under this law using  the long arm provision and try                                                               
to punish  them militarily.  He  said, "Now, if South  Dakota was                                                               
pursuing criminal  charges, I think  we would want  to coordinate                                                               
with the South Dakota authorities ..."                                                                                          
2:20:14 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  interjected,  and  said,  suppose  the                                                               
civilian authorities  were not  involved, and  it was  the Alaska                                                               
and South  Dakota National Guard, and  the member went AWOL.   He                                                               
asked how the code resolves that issue.                                                                                         
CAPTAIN  DUNBAR opined  that it  would  be Alaska's  jurisdiction                                                               
because the person would be  absent without leave from the Alaska                                                               
National Guard.   He offered that  he did not yet  have an answer                                                               
regarding a member disrespecting a  superior officer in the South                                                               
Dakota National Guard.                                                                                                          
REPRESENTATIVE GRUENBERG  said he  was not requesting  an answer,                                                               
but that  these theoretical questions  should be resolved  in the                                                               
initial draft so there are not two conflicting state codes.                                                                     
CHAIR LEDOUX  interjected that she  is not sure about  going down                                                               
this trail  and described it as  a conflict of law.   She offered                                                               
that  it  may  very  well  be  that  both  National  Guards  have                                                               
jurisdiction and wherever the person  is tried first will have to                                                               
decide whose  code to apply.   She  explained in civil  law there                                                               
may  be   cases  in  which   both  California  and   Alaska  have                                                               
jurisdiction and  the answer is  not in  the statute as  to which                                                               
court has jurisdiction, the court decides.                                                                                      
REPRESENTATIVE  GRUENBERG remarked  that  the legislature  should                                                               
try to resolve issues during the drafting of the law.                                                                           
2:22:41 PM                                                                                                                    
CAPTAIN DUNBAR referred to slide  3, and advised Version G amends                                                               
title  relating  to  jurisdiction   of  the  Supreme  Court  over                                                               
petitions  from  the Military  Appeals  Commission,  and a  three                                                               
strike system was  created for the DUI provision  to more closely                                                               
mirror  civilian  law, but  an  amendment  is required  regarding                                                               
whether a person  is on orders or  not on orders.  He  said it is                                                               
the hope  of the  AKNG to  remove most  of those  distinctions of                                                               
whether a person is, or is  not, on orders is largely immaterial.                                                               
The  three  strike  system  is a  person  having  a  misdemeanor,                                                               
misdemeanor, felony, where  a person is opened up  to one-year of                                                               
potential  jail time,  one-year  of confinement,  and then  five-                                                               
years for  a third offense.   He  opined that someone  getting to                                                               
their third  DUI without  being discharged  from the  military is                                                               
unlikely with the  current guard.  He explained,  "We also create                                                               
a system of alternates ..."                                                                                                     
REPRESENTATIVE  GRUENBERG  questioned   whether  he  envisions  a                                                               
circumstance where  someone with  a DUI  is prosecuted  under the                                                               
military code.                                                                                                                  
CAPTAIN DUNBAR advised that it  was included with the possibility                                                               
that the  civilians would not  pursue the case, yet  the military                                                               
did.    He  offered  his  awareness  that  the  State  of  Alaska                                                               
aggressively pursues DUIs, and opined it is relatively unlikely.                                                                
REPRESENTATIVE GRUENBERG offered that  if the military prosecutes                                                               
for  whatever crime,  under this  provision,  then presumably  it                                                               
would be remanded to a federal agency.                                                                                          
2:25:18 PM                                                                                                                    
CAPTAIN DUNBAR  answered, that is not  the case in that  the bill                                                               
is  written  the  Alaska  Department  of  Corrections  will  take                                                               
custody of the individual if they receive confinement.                                                                          
REPRESENTATIVE GRUENBERG asked whether  the person would have any                                                               
greater right  to treatment.   He offered  that if  under federal                                                               
law they would have a better  right to mental health treatment or                                                               
whatever, people might  aggressively want them to  go through the                                                               
CAPTAIN DUNBAR advised  they have not performed  a comparison for                                                               
the  different  treatments available,  but  the  military has  an                                                               
extensive substance abuse program and  it attempts to treat their                                                               
soldiers and  airmen.  He  said whether soldiers or  airmen would                                                               
lose rights to  that under ... if they were  charged, he couldn't                                                               
answer,  but  opined  they  would  be  charged,  go  through  the                                                               
American  Substance   Abuse  Professionals  (ASAP)   program,  go                                                               
through a court martial, and be sentenced.                                                                                      
CHAIR  LEDOUX interjected  that should  this type  of questioning                                                               
continue the committee will not get through the bill.                                                                           
2:26:50 PM                                                                                                                    
CAPTAIN  DUNBAR referred  to  slide 4,  and  reiterated that  the                                                               
ultimate  goal is  to promote  good order  and discipline  in the                                                               
force, be  combat ready  and, he noted,  that the  National Guard                                                               
has  lacked  this   vital  tool  in  promoting   good  order  and                                                               
discipline.   He explained  that people  currently in  the Alaska                                                               
National  Guard (AKNG)  expect to  be deployed  at some  point in                                                               
their service  as it is a  reserve component of the  United State                                                               
military.   He turned to slide  5 and said the  bill will receive                                                               
work  during the  interim, although,  it is  at a  path now  that                                                               
would create a functioning system  of military justice in Alaska.                                                               
He reiterated  that the Red  Team's preliminary  results indicate                                                               
CSHB 126 is a functioning  bill, the punitive articles cover most                                                               
of   the  misbehavior   expected,   and  nonjudicial   punishment                                                               
regulations appear  to work.   Interestingly,  he said,  when the                                                               
commanders run  through the scenarios  they often don't  use this                                                               
tool  and continue  to  use the  administrative  tools they  have                                                               
always used.   The  indication is  that the  administrative tools                                                               
will  continue to  be  the  primary mode  of  discipline in  many                                                               
cases,  such  as  letters of  reprimand,  reduction  boards,  and                                                               
separation boards.   It also indicated  that the AKNG has  a long                                                               
way to go to  educate its own force and commanders  on how to use                                                               
these  tools, together  with demonstrating  that  these tools  in                                                               
some cases  are more effective and  can be used in  a more timely                                                               
fashion than the existing administrative  tools.  He advised that                                                               
over the  next few months,  the AKNG  will put together  plans to                                                               
help roll this out to the force.                                                                                                
CAPTAIN DUNBAR remarked that the  people working on this bill are                                                               
hearing from people in the force  that they want these tools now.                                                               
He said  they are hopeful the  bill will pass in  the spring, and                                                               
shortly  thereafter  put  the   regulation  forward  to  Governor                                                               
Walker.   He  expects that  the earliest  the tools  can be  used                                                               
after a  period of  education, and putting  out materials  to the                                                               
force on their use, is late summer.                                                                                             
2:31:29 PM                                                                                                                    
REPRESENTATIVE  CLAMAN  referred  to   a  memorandum  drafted  by                                                               
Captain  Dunbar  regarding  "attempts"   and  how  attempts  were                                                               
treated.  He offered that  under Alaska law, attempt is generally                                                               
scaled  back one  degree but  was not  the case  in the  military                                                               
code, and asked to be directed to the correct section.                                                                          
CAPTAIN  DUNBAR responded,  Sec.  26.05.580(b), "Attempts,"  page                                                               
36, lines 4-7, which read:                                                                                                      
          (b) A member of the militia who attempts to                                                                           
     commit an offense under this  chapter shall be punished                                                                    
     as  a   court-martial  may  direct,   unless  otherwise                                                                    
     specifically prescribed.   However, a court-martial may                                                                    
     not direct  a punishment  for an  attempt to  commit an                                                                    
     offense  that is  greater than  the maximum  punishment                                                                    
     for the offense.                                                                                                           
CAPTAIN DUNBAR  explained that it  is not formulated in  the same                                                               
manner as Alaska law  in that "a class A, is now  a class B," and                                                               
said he was  uncertain as to whether class A  is worse than class                                                               
REPRESENTATIVE  CLAMAN offered  that  the way  of  Alaska law,  a                                                               
class A  felony with  attempt would  be a class  B felony,  and a                                                               
class C felony would be a class A misdemeanor.                                                                                  
CAPTAIN DUNBAR  advised the provision  is not formulated  in that                                                               
manner,  and that  the language  is  taken from  the state  model                                                               
code.  He  referred to [Sec. 26.05.580(b),  "Attempts," page 36],                                                               
subsection (b), [lines 6-7], which read:                                                                                        
       (b) ... However, a court-martial may not direct a                                                                        
     punishment for an attempt to commit an offense that is                                                                     
     greater than the maximum punishment for the offense.                                                                       
CAPTAIN  DUNBAR explained  that  it does  not automatically  drop                                                               
back in the same manner, but it clearly cannot be more severe.                                                                  
2:33:22 PM                                                                                                                    
REPRESENTATIVE   GRUENBERG   referred  to   [Sec.   26.05.580(c),                                                               
"Attempts," page 36, lines 8-10, which read:                                                                                    
          (c) A member of the militia may be convicted of                                                                       
     an  attempt to  commit  an offense  under this  chapter                                                                    
     even if it appears, at  the trial, that the offense was                                                                    
REPRESENTATIVE   GRUENBERG  asked   whether  subsection   (c)  is                                                               
currently in Title 11.                                                                                                          
CAPTAIN DUNBAR  advised he is  not familiar enough with  Title 11                                                               
to offer  an answer, but  that the  language was provided  by the                                                               
National  Guard Bureau  and was  not taken  directly from  Alaska                                                               
state law.                                                                                                                      
REPRESENTATIVE  GRUENBERG  asked   Captain  Dunbar  to  determine                                                               
whether the language  is identical in Title 11,  because if under                                                               
subsection  (c) a  person may  be convicted  of an  attempt, even                                                               
though the crime  was consummated, he questioned  whether that is                                                               
a lesser included offense, and whether  a person is entitled to a                                                               
jury instruction to that effect.                                                                                                
CAPTAIN DUNBAR said he would research the question.                                                                             
2:34:39 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  referred to Sec.  26.05.400, "Statement                                                               
of  policy on  military justice,"  [page 3,  lines 16-23],  which                                                               
          Courts-martial have primary jurisdiction over                                                                         
     offenses  under this  chapter, except  when  an act  of                                                                    
     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.                                                                       
REPRESENTATIVE GRUENBERG advised that  the law is a sophisticated                                                               
form  of  "gamesmanship," and  here  is  a possibility  of  going                                                               
forward in one of two forums.   He opined that the prosecution is                                                               
bound  here, generally,  to take  the civilian  route, where  the                                                               
defense may  not be similarly  bound because it is  a prosecution                                                               
question and  the defense  doesn't have a  choice.   He commented                                                               
that  Captain Dunbar  may want  to  speak with  the military  and                                                               
civilian defense  bars to  determine how  the interplay  could be                                                               
gained by either side.                                                                                                          
CAPTAIN  DUNBAR   responded  that  Representative   Gruenberg  is                                                               
correct in  assuming there  will be  gamesmanship on  both sides.                                                               
He opined that  it is difficult to predict how  that will proceed                                                               
because some  states have only  military offenses in  their codes                                                               
so  this would  never  come into  effect.   He  explained at  the                                                               
federal level, because  it is a comprehensive  criminal code, the                                                               
federal  military   can  always  proceed  without   the  civilian                                                               
authorities  agreeing  to it.    He  added  that they  have  been                                                               
working with  their own defense  counsel on these  provisions and                                                               
noted  that  in  his  office, attorneys  rotate  back  and  forth                                                               
between  being prosecutors  and defense  attorneys, but  recently                                                               
defense and prosecution attorneys have become more calcified.                                                                   
REPRESENTATIVE GRUENBERG said  any law will be used  in ways that                                                               
couldn't possibly have been imagined.                                                                                           
2:38:24 PM                                                                                                                    
REPRESENTATIVE  CLAMAN   referred  back  to   Sec.  26.05.580(c),                                                               
"Attempts,"  page 36,  lines  8-10,  having to  do  with "if  the                                                               
evidence  shows that  a  crime  has occurred  ..."  and said  his                                                               
general  sense is  that  often  times a  crime  is charged  under                                                               
attempt  because the  information at  the time  of charging  only                                                               
rises  to  the level  of  attempt.    He  continued that  as  the                                                               
evidence  comes  forward  and without  having  to  re-charge  the                                                               
individual, they  proceed under  attempt for probable  reasons of                                                               
judicial efficiency.                                                                                                            
2:39:30 PM                                                                                                                    
CHAIR LEDOUX referred to Sec. 2, page 2, line 7, which read:                                                                    
     (a) ... while in this such service.                                                                                        
CHAIR LEDOUX offered that it doesn't  make sense to her and asked                                                               
whether it was a typo.                                                                                                          
CAPTAIN DUNBAR agreed that it is a typo.                                                                                        
CHAIR  LEDOUX  pointed  out  that it  was  included  in  previous                                                               
2:40:18 PM                                                                                                                    
CHAIR  LEDOUX  referred  to   Sec.  26.05.435,  "Jurisdiction  of                                                               
courts-martial in general," page 8, lines 6-9, which read:                                                                      
          Each force of the militia of the state in active                                                                      
     military  service has  court-martial jurisdiction  over                                                                    
     all  members   of  the  militia.     The   exercise  of                                                                    
     jurisdiction  by one  force over  personnel of  another                                                                    
     force must be  in accordance with the  code of military                                                                    
CHAIR LEDOUX advised she was uncertain of the language.                                                                         
CAPTAIN DUNBAR advised that there  are two forces in the militia,                                                               
army guard and  air guard, and offered that  this provision reads                                                               
that  the army  guard could  charge the  air guard,  and the  air                                                               
guard could  charge the army  guard.  Although, he  indicated, he                                                               
doubted it  would happen, but there  could be a situation  with a                                                               
mixed force doing something in the field and something happens.                                                                 
2:41:09 PM                                                                                                                    
CHAIR LEDOUX  surmised that the  following sentence  is referring                                                               
to the Alaska Code of Military Justice:                                                                                         
     The  exercise   of  jurisdiction  by  one   force  over                                                                    
     personnel of  another force must be  in accordance with                                                                    
     the code of military justice.                                                                                              
CAPTAIN DUNBAR  responded yes, and  offered the scenario  that if                                                               
an air  guard commander charged  an army guard soldier,  it would                                                               
have  to   be  under  these   provisions  and  not   under  other                                                               
regulations unique to one force or the other.                                                                                   
2:41:54 PM                                                                                                                    
CHAIR  LEDOUX   referred  to   Sec.  26.05.444(b),   "Grand  jury                                                               
requirement," page 9, lines 7-11, which read:                                                                                   
          (b) The general court-martial convening authority                                                                     
     shall  designate   one  or  more  judge   advocates  to                                                                    
     represent the authority at the  grand jury, except that                                                                    
     at the  request of the  adjutant general, and  with the                                                                    
     consent of  the attorney  general, a  district attorney                                                                    
     or  an   attorney  from  the  Department   of  Law  may                                                                    
     represent the convening authority at the grand jury.                                                                       
CHAIR  LEDOUX asked  the difference  between a  district attorney                                                               
and an attorney from the Department of Law.                                                                                     
CAPTAIN  DUNBAR   opined  that   the  language  was   written  by                                                               
Legislative Legal  Services and Research  and he is  not familiar                                                               
with the [Department of Law's] structure.                                                                                       
2:43:04 PM                                                                                                                    
MEGAN WALLCE, Attorney, Legislative  Legal and Research Services,                                                               
Legislative Affairs Agency, [Available for questions.]                                                                          
CHAIR LEDOUX  restated the  question regarding  Sec. 26.05.400(b)                                                               
and  asked  whether attorneys  are  called  district attorney  or                                                               
assistant attorney general at the Department of Law.                                                                            
MS. WALLACE  advised she would have  to look into it  further and                                                               
will clarify it for the committee.                                                                                              
CHAIR LEDOUX agreed.                                                                                                            
2:44:03 PM                                                                                                                    
CAPTAIN  DUNBAR indicated  that  removing  district attorney  and                                                               
simply  adding  attorney from  the  Department  of Law  would  be                                                               
CHAIR LEDOUX agreed.                                                                                                            
2:44:23 PM                                                                                                                    
CHAIR  LEDOUX referred  to Sec.  26.05.468(c)(2), "Investigation;                                                               
preliminary hearing," page 15, lines 19-22, which read:                                                                         
               (2) give the accused the opportunity to                                                                          
     cross-examine  witnesses against  the  accused, if  the                                                                    
     witnesses are  available; a victim may  not be required                                                                    
     to  testify  at a  preliminary  hearing;  a victim  who                                                                    
     declines to  testify is considered unavailable  for the                                                                    
     purposes of the preliminary hearing;                                                                                       
CHAIR LEDOUX asked how that mirrors Alaska criminal law.                                                                        
CAPTAIN DUNBAR noted the language  was taken from the most recent                                                               
version of Federal  UCMJ with regard to sexual  assault, the rape                                                               
shield law.   The purpose of  the provision, he explained,  is to                                                               
prevent sexual  assault victims from  being re-victimized  in the                                                               
preliminary hearing, but  he does not know how  it mirrors Alaska                                                               
law.   He added that victims  of a non-sexual assault  could also                                                               
avail themselves of this provision.                                                                                             
MS. WALLACE responded  that she does not  normally draft criminal                                                               
law and will review Alaska's rape shield law and compare.                                                                       
2:46:53 PM                                                                                                                    
REPRESENTATIVE CLAMAN  opined that this provision  is coming from                                                               
the national statute as opposed to  a state statute.  He reported                                                               
that  in  many  states,  felony  prosecution  has  an  option  of                                                               
presenting a  case to the  grand jury  and holding a  person over                                                               
for a  felony trial,  or they can  proceed through  a preliminary                                                               
hearing.    He  offered  that  if the  person  goes  through  the                                                               
preliminary hearing  process and  the court find  probable cause,                                                               
there is no  need to go before  the grand jury.   In contrast, he                                                               
remarked,  in Alaska  there can  be a  preliminary hearing  which                                                               
gives  the state  the opportunity  to  hold a  person in  custody                                                               
until going  before the  grand jury  because there  is no  way to                                                               
avoid  the grand  jury requirement.    For purposes  of going  to                                                               
trial,  the case  must be  presented to  the grand  jury and,  he                                                               
opined,  this  particular  provision   was  designed  to  protect                                                               
victims from  going through  cross-examination twice.   Typically                                                               
in Alaska,  the victim would  testify in a grand  jury proceeding                                                               
but  would not  be cross-examined  by  the defense  counsel.   He                                                               
opined that the provision reads  that victims would be considered                                                               
unavailable and could not be forced to appear by subpoena.                                                                      
2:48:52 PM                                                                                                                    
CAPTAIN  DUNBAR responded  that within  the military  there is  a                                                               
fairly well-established  and aggressive system  of investigation,                                                               
and referred  to the  work of Senator  Kirsten Gillibrand  of New                                                               
York.   He explained  that Senator  Gillibrand and  other leaders                                                               
from the  United States  Senate and  elsewhere realized  that the                                                               
manner  in which  the military  investigated sexual  assaults was                                                               
not  sympathetic  to  the  victims,  in  that  the  investigation                                                               
process was  very aggressive and  lead to very  aggressive cross-                                                               
examinations.   For that  purpose they  put in  these amendments,                                                               
and he mentioned that he was  unsure how that interplays with the                                                               
grand  jury.   Practically  speaking,  he said,  the  goal is  to                                                               
prevent people from being  re-victimized during the investigation                                                               
REPRESENTATIVE  CLAMAN  advised that  it  is  very clear  at  the                                                               
federal and state levels with  the grand jury proceedings in that                                                               
the  defense   attorney  is  outside  the   door.    Occasionally                                                               
defendants  choose to  testify before  the grand  jury but  their                                                               
lawyers are not allowed inside and,  he pointed out, the issue of                                                               
cross-examination in grand jury rooms is a non-issue.                                                                           
2:50:19 PM                                                                                                                    
CHAIR  LEDOUX asked  how the  preliminary hearing  gels with  the                                                               
grand jury proceeding in this bill.                                                                                             
CAPTAIN DUNBAR noted  that Alaska is the only state  with a grand                                                               
jury requirement,  and it was  included due to  Alaska's uniquely                                                               
strong constitutional  protections for a  right to a  grand jury.                                                               
He  noted  that  the  preliminary   hearing  or  the  grand  jury                                                               
proceeding should satisfy due process  and they do not envision a                                                               
case  with both.   He  offered that  they have  not exactly  "war                                                               
gamed" the  issue of  when a  person goes to  either one,  but he                                                               
believes  it will  probably lean  toward the  preliminary hearing                                                               
process as it is similar  to established ways of investigation in                                                               
the military.                                                                                                                   
CHAIR LEDOUX  questioned whether a  felony would require  a grand                                                               
CAPTAIN DUNBAR responded, probably.                                                                                             
2:51:47 PM                                                                                                                    
CHAIR  LEDOUX  pointed out  that  all  sexual assault  cases  are                                                               
CAPTAIN  DUNBAR  answered  that with  sexual  assaults  the  vast                                                               
majority  of   investigations  will   be  performed   by  trained                                                               
civilians, and in  that regard the investigation  process may not                                                               
be  necessary on  the  military  side.   He  reiterated that  the                                                               
investigation  will be  performed by  trained civilians  who know                                                               
how to investigate  sexual assaults and then  "we'll" present the                                                               
evidence to the grand jury.                                                                                                     
CHAIR LEDOUX then pointed out  that Captain Dunbar had previously                                                               
advised the  committee that the  reason for subsection (b)  is to                                                               
not [re-]  victimize the  rape victim,  and said  that now  he is                                                               
saying  he  does  not  expect  to use  this  section  for  sexual                                                               
assaults, which is confusing.                                                                                                   
CAPTAIN DUNBAR agreed  that it is a confusing  question and noted                                                               
that Alaska is the  first state to do both at  once.  Even though                                                               
the process  is not expected  to be  used, in the  unlikely cases                                                               
that  they do  AKNG wants  protections in  place for  victims, he                                                               
2:53:27 PM                                                                                                                    
CHAIR LEDOUX commented that it  should be somewhat narrowed.  She                                                               
offered  a scenario  of  someone being  beaten  up, not  sexually                                                               
assaulted;  therefore, the  rape shield  law is  not needed,  and                                                               
asked why that witness would be shielded.                                                                                       
CAPTAIN  DUNBAR  explained  that  they have  taken  most  of  the                                                               
regular assault out  of the bill, although,  contained within the                                                               
bill  is a  misdemeanor  "abusive sexual  contact."   He  further                                                               
explained that the  case would not go to a  grand jury, but there                                                               
would be  an investigation of  the person victimized in  a sexual                                                               
manner,  and  the  military  may   want  victims  to  have  these                                                               
protections available to them.                                                                                                  
CHAIR LEDOUX said they would speak again about this provision.                                                                  
2:54:42 PM                                                                                                                    
REPRESENTATIVE MILLETT requested the  definition of a misdemeanor                                                               
sexual crime.                                                                                                                   
CAPTAIN   DUNBAR   referred   Representative  Millett   to   Sec.                                                               
26.05.620(b),  "Sexual  assault,"  [page 49,  lines  5-9],  which                                                               
          (b) A member of the militia who commits or causes                                                                     
     sexual contact  on or by  another person, and  in doing                                                                    
     so violates (a)  of this section, is  guilty of abusive                                                                    
     sexual  contact and  shall be  punished by  up to  five                                                                    
     years    of    confinement,    by    separation    with                                                                    
     characterization up  to dishonorable discharge,  and by                                                                    
     such other punishment as a court-martial may direct.                                                                       
CAPTAIN DUNBAR acknowledged that he  misspoke in that the minimum                                                               
punishment for "abusive sexual contact"  is five years, a felony.                                                               
He related  that the only  misdemeanor crimes related to  sex are                                                               
Sec.  26.05.622,  "Other  sexual  misconduct:  indecent  viewing,                                                               
visual  recording,  or  broadcasting."    He  said  if  there  is                                                               
physical contact with  a victim, the military has  the ability to                                                               
determine up to five years of confinement, a felony.                                                                            
2:56:13 PM                                                                                                                    
CHAIR   LEDOUX  referred   to   page   16,  [Sec.   26.05.468(h),                                                               
"Investigation;  preliminary  hearing,"  page 16,  lines  18-21],                                                               
which read:                                                                                                                     
          (h) In this section, "victim" means a person who                                                                      
     is  alleged   to  have  suffered  a   direct  physical,                                                                    
     emotional,  or  pecuniary  harm  as  a  result  of  the                                                                    
     matters  set out  in a  charge  or specification  being                                                                    
     considered and  who is named  in a  specification being                                                                    
CHAIR  LEDOUX   pointed  to   "direct  physical,   emotional,  or                                                               
pecuniary  harm," and  said  it  sounds like  it  goes "way,  way                                                               
beyond" a victim of sexual assault.                                                                                             
CAPTAIN  DUNBAR  agreed,  and offered  that  the  motivation  for                                                               
including these protections  has to do with the  rape shield law,                                                               
and  these  provisions  go significantly  beyond  sexual  assault                                                               
CHAIR LEDOUX advised they would speak again about this issue.                                                                   
2:57:34 PM                                                                                                                    
CHAIR  LEDOUX   referred  to   Sec.  26.05.485(d),   "Statute  of                                                               
limitations," page 19, lines 19-22, which read:                                                                                 
          (d) When the United States is at war or engaged                                                                       
     in contingency  operations, the running of  a period of                                                                    
     limitation  for  an  offense   under  this  chapter  is                                                                    
     suspended  until two  years  after  the termination  of                                                                    
     hostilities  as  proclaimed  by the  President  of  the                                                                    
     United States  or by a  joint resolution of  the United                                                                    
     States Congress if the offense                                                                                             
CHAIR LEDOUX  pointed to, "When  the United  States is at  war or                                                               
engaged in contingency operations, the  running of the statute of                                                               
limitations is  extended ..." and  said they discussed  that this                                                               
actually  means  it  is  extended probably  forever.    She  then                                                               
referred to  a memorandum from  Colonel Dan Collins,  Staff Judge                                                               
Advocate,  Alaska National  Guard, who  attempted to  explain the                                                               
rationale behind the  provision.  She offered  a scenario, "there                                                               
is an operation in Iraq and it is  not a declared war but just an                                                               
operation,  and  somehow  or  other the  National  Guard  is  not                                                               
federalized at this  point.  And so, the operation  in Iraq comes                                                               
to  an  end.    And  so  that  would  seem  that  that  would  be                                                               
justification  for extending  the  Statute of  Limitations.   But                                                               
then,  we're  in  another contingency  operation,  let's  say  in                                                               
Afghanistan.  Well, why should  it be continued for the operation                                                               
in  Afghanistan  when  it's  come  to  light  after  the  end  of                                                               
hostilities in Iraq?"                                                                                                           
CAPTAIN  DUNBAR offered  that the  AKNG service  members are  not                                                               
serving in Iraq or Afghanistan  because otherwise they'd be fully                                                               
federalized under Title  10, which subject to the UCMJ.   In this                                                               
scenario  they are  being charged  in Alaska  ... or  they're not                                                               
being charged, and the Statute  of Limitations is being suspended                                                               
due to  some operation outside  the state.   He offered  that the                                                               
argument would have  to be that something  about that contingency                                                               
operation is taking  resources out of the AKNG  and preventing it                                                               
from proceeding with  this in a timely fashion.   He opined it is                                                               
an  interesting policy  question  and something  to be  discussed                                                               
further whether  to retain the  provision, revise it in  a manner                                                               
that  it  is  clear  the  AKNG command  is  not  trying  to  take                                                               
advantage  of this  in some  manner,  or trying  to keep  someone                                                               
basically in a  state of "suspended animation."   He offered that                                                               
the  National  Guard  has  been   in  contingency  operations  in                                                               
Afghanistan for 14-years  in that the United  States Congress has                                                               
not declared war, but the  National Guard is engaged in something                                                               
that  looks  very   much  like  a  war,  such  as   in  Iraq  and                                                               
Afghanistan.   He opined  that Colonel  Collins's point,  and the                                                               
reason to  insert contingency operation,  is because  they didn't                                                               
want to  get caught up in  the legalese of the  definition of war                                                               
as America has not technically been in a war since World War II.                                                                
CHAIR  LEDOUX  agreed  with  Representative  Gruenberg  that  the                                                               
ongoing above-discussion will include the full committee.                                                                       
3:02:22 PM                                                                                                                    
CHAIR LEDOUX  referred to  Sec. 26.05.488(a),  "Former jeopardy,"                                                               
page 20, lines 13-14, which read:                                                                                               
           (a) A person may not, without the person's                                                                           
      consent, be tried a second time for the same offense                                                                      
     under this chapter.                                                                                                        
CHAIR LEDOUX asked when a person  would consent to [being tried a                                                               
second time].                                                                                                                   
CAPTAIN  DUNBAR advised  that this  language  was taken  directly                                                               
from the  state model code and  he could not imagine  a situation                                                               
where it would be  used.  He said he will  speak with the lawyers                                                               
at the National Guard Bureau and get back to the committee.                                                                     
REPRESENTATIVE  GRUENBERG   offered  the  concept   of  "manifest                                                               
necessity" and the rule that a  person cannot be re-tried for the                                                               
same crime unless the dismissal was for a manifest necessity.                                                                   
CHAIR LEDOUX said that possibly Colonel Collins could explain.                                                                  
3:04:24 PM                                                                                                                    
CHAIR LEDOUX  referred to  Sec. 26.05.488(b),  "Former jeopardy,"                                                               
page 20, lines 15-17, which read:                                                                                               
          (b) A proceeding in which an accused has been                                                                         
     found  guilty  by  a court-martial  on  any  charge  or                                                                    
     specification  is  not  a  trial   under  the  code  of                                                                    
     military justice  until a finding of  guilty has become                                                                    
     final after review of the case has been completed.                                                                         
CHAIR LEDOUX said that the provision is not clear.                                                                              
CAPTAIN DUNBAR  offered to speak  with the National  Guard Bureau                                                               
as to its intent.                                                                                                               
REPRESENTATIVE  GRUENBERG  said  that apparently  the  phrase  "a                                                               
trial under  the code of  military justice" is  a term of  art in                                                               
that it is looking  to be defined by the UCMJ, and  it is not the                                                               
civilian term "trial."                                                                                                          
3:06:27 PM                                                                                                                    
CHAIR  LEDOUX  referred to  Sec.  26.05.500(d),  "Lack of  mental                                                               
capacity  or mental  responsibility;  commitment  of accused  for                                                               
examination and treatment," page 23, lines 24-31, 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 pointed  to "if the accused  remains incompetent for                                                               
five years the charges will  be dismissed under this subsection,"                                                               
and asked Ms.  Wallace whether Alaska's criminal law  is the same                                                               
in  that if  a  person  remains incompetent  for  five years  the                                                               
charges are dismissed.                                                                                                          
MS. WALLACE  responded that  she will  research the  question and                                                               
determine how Title 12 proceedings handle this issue.                                                                           
CHAIR LEDOUX  asked Captain  Dunbar, assuming  Alaska law  is not                                                               
the same,  why dismiss  the charges that  could be  quite serious                                                               
charges if five years have elapsed.                                                                                             
CAPTAIN  DUNBAR answered  that this  language is  from the  state                                                               
model code and he  was unsure of its intent.   He opined that the                                                               
Alaska National  Guard's maximum  penalty is  10-years, and  if a                                                               
person is  committed for  the purpose  of trying  to rehabilitate                                                               
them for  five years, and  the person could not  become competent                                                               
to stand trial, there  may be a case where the  AKNG did not feel                                                               
it was  "just" to proceed with  the charges.  He  stated the AKNG                                                               
does not criminally prosecute the mentally incapacitated.                                                                       
3:08:40 PM                                                                                                                    
REPRESENTATIVE GRUENBERG said that when  language is taken from a                                                               
model   code,  it   would   be  helpful   for   the  experts   to                                                               
telephonically testify at the next hearing.                                                                                     
CHAIR LEDOUX agreed.                                                                                                            
MR. DANBAR agreed,  but offered that many of  the people involved                                                               
in  drafting  the 2007  model  statutes  are  gone, but  he  will                                                               
contact the  new judge advocates  to answer these questions.   He                                                               
warned that  some responses to  the committee's questions  may be                                                               
unsatisfying as people may not recall  why it was drafted in this                                                               
REPRESENTATIVE  GRUENBERG related  that when  a statute  is taken                                                               
from  another state,  with it  comes the  highest recorded  court                                                               
interpretation that was handed down  before the effective date of                                                               
CSHB 126.                                                                                                                       
CHAIR LEDOUX pointed out that  while there may have been language                                                               
taken from  the uniform  code, this  bill is  far from  a uniform                                                               
REPRESENTATIVE GRUENBERG  responded that if a  particular section                                                               
was  taken  from this  model  code,  whether other  jurisdictions                                                               
reported ...                                                                                                                    
CHAIR LEDOUX interjected that the  current issue is the five-year                                                               
requirement  and are  attempting  to determine  why the  military                                                               
might want this.                                                                                                                
REPRESENTATIVE GRUENBERG  referred to the uniform  code annotated                                                               
as it contains ...                                                                                                              
CHAIR LEDOUX asked  Captain Dunbar whether there is  such a thing                                                               
as the uniform code annotated for this.                                                                                         
3:12:35 PM                                                                                                                    
CAPTAIN DUNBAR  responded, not exactly.   He explained  the state                                                               
model code does have some annotation,  and the Federal UCMJ has a                                                               
lot  of annotation  and precedent.   He  added that  other states                                                               
have adopted  the model  code "and some  of them  presumably have                                                               
done some  of these things,"  and he  could ask other  states why                                                               
they used  this provision in  this manner.   He said  he suspects                                                               
this particular provision  has been rarely to never  used, and he                                                               
will perform research on that issue.                                                                                            
CHAIR  LEDOUX responded  to Representative  Gruenberg's statement                                                               
that he is  not limiting himself to "this," by  advising him that                                                               
"this" is  what is being discussed.   She agreed to  come back at                                                               
some point.                                                                                                                     
3:13:57 PM                                                                                                                    
CHAIR  LEDOUX referred  to  Sec.  26.05.598, "Noncompliance  with                                                               
procedural rules," page 41, lines 9-17, which read:                                                                             
          A member of the militia who (1) is responsible                                                                        
     for unnecessary  delay in the  disposition of  the case                                                                    
     of  another person  accused of  an  offense under  this                                                                    
     chapter  shall  be punished  by  up  to six  months  of                                                                    
     confinement, by separation  with characterization up to                                                                    
     a bad  conduct discharge, and by  such other punishment                                                                    
     as  a court-martial  may direct,  or (2)  knowingly and                                                                    
     intentionally  fails  to  enforce   or  comply  with  a                                                                    
     provision  of this  chapter regulating  the proceedings                                                                    
     before, during, or  after trial of an  accused shall be                                                                    
     punished  by   up  to  one  year   of  confinement,  by                                                                    
     separation  with  characterization up  to  dishonorable                                                                    
     discharge,  and by  such other  punishment as  a court-                                                                    
     martial may direct.                                                                                                        
CHAIR LEDOUX commented  that the provision appears  to be similar                                                               
to a  "frivolous" cause of  action filed  in the civil  court for                                                               
delay, and are fined by the Alaska Court System.                                                                                
REPRESENTATIVE GRUENBERG  replied that he  is not aware of  it in                                                               
the  state  criminal  sphere,  although   Civil  Rule  82  allows                                                               
enhanced attorney fees.                                                                                                         
CHAIR LEDOUX described this as a fairly harsh punishment.                                                                       
3:15:29 PM                                                                                                                    
CAPTAIN  DUNBAR referred  to the  Maximum Punishments  Matrix and                                                               
said the  punishment of six  months; and a bad  conduct discharge                                                               
is  the  same punishment  as  the  Federal  UCMJ.   He  said  the                                                               
"knowingly  and   intentionally  fails  to  enforce   or  comply"                                                               
punishment  is  up to  one-year  confinement  and a  dishonorable                                                               
discharge,  with   the  Federal  UCMJ  being   five-years  and  a                                                               
dishonorable  discharge.   He agreed  that  up to  one-year is  a                                                               
serious  penalty, although  it is  significantly  less than  what                                                               
they would be subject to if they were on active duty.                                                                           
CHAIR LEDOUX asked whether this  would apply to defense attorneys                                                               
trying to delay proceedings.                                                                                                    
CAPTAIN  DUNBAR offered  that he  does  not believe  that is  the                                                               
case, and  will provide  a more concrete  answer.   Defense judge                                                               
advocates, as with civilian defense  attorneys, attempt to extend                                                               
the proceeding  to the  benefit of their  client.   He reiterated                                                               
that judge advocates rotate back  and forth at different times in                                                               
their career  between being a  defense attorney and  a prosecutor                                                               
so things are  more collegial, and the kind  of gamesmanship seen                                                               
on the  civilian side happens  less.   He remarked that  the AKNG                                                               
does   not  prosecute   defense  attorneys   for  being   defense                                                               
3:17:29 PM                                                                                                                    
CHAIR LEDOUX requested  an example of where  this provision would                                                               
be used and on whom.                                                                                                            
CAPTAIN DUNBAR responded that he  would like to review the Manual                                                               
for Courts-Martial and get back to her.                                                                                         
REPRESENTATIVE  GRUENBERG  commented that  this  can  be used  in                                                               
federal racketeering cases and it  forces the defense attorney to                                                               
disgorge  their fees.   Under  Civil Rule  11, pleadings  must be                                                               
certified  in good  faith,  and  he opined  that  if an  attorney                                                               
disobeys  a court  order the  remedy is  contempt of  court.   He                                                               
described   this  as   having  a   significant  chilling   effect                                                               
particularly if the lawyer is a member of the military.                                                                         
CAPTAIN DUNBAR  said he could  not speak to  federal racketeering                                                               
charges,  but  believes  this  deals  with  cases  of  favoritism                                                               
wherein  a  prosecuting  judge advocate  is  sympathetic  to  the                                                               
defendant  in some  manner, and  is  intentionally and  knowingly                                                               
delaying proceedings.                                                                                                           
3:19:38 PM                                                                                                                    
CHAIR LEDOUX referred to  Sec. 26.05.600, "Subordinate compelling                                                               
surrender," page 42, lines 10-17, which read:                                                                                   
          A member of the militia who compels or attempts                                                                       
     to compel  the commander of  the militia of  this state                                                                    
     or  of  any other  state,  of  a  place, a  vessel,  an                                                                    
     aircraft, or  another military property,  or of  a body                                                                    
     of members  of the  armed forces  to five  it up  to an                                                                    
     enemy  or  to  abandon  it  in the  face  of  a  threat                                                                    
     described in  AS 26.05.070, or  who strikes  the colors                                                                    
     or flag to an enemy  without proper authority, shall be                                                                    
     punished  by   up  to  10  years   of  confinement,  by                                                                    
     separation  with  characterization up  to  dishonorable                                                                    
     discharge,  and by  such other  punishment as  a court-                                                                    
     martial may direct.                                                                                                        
CHAIR LEDOUX referred to "any other  state, of a place, a vessel,                                                               
an aircraft ..." and said she does not understand.                                                                              
CAPTAIN  DUNBAR explained  that it  compels a  commander of  this                                                               
state or  another state to  surrender a place,  vessel, aircraft,                                                               
or other  property. He commented  it is not clearly  written, but                                                               
it  is  a  separate  provision.     He  offered  it  is  where  a                                                               
subordinate member of the militia  is forcing a commander to give                                                               
up a place, to give ground.                                                                                                     
CHAIR LEDOUX  asked that he  work with Legislative  Legal Service                                                               
and Research to draft this provision in a clear manner.                                                                         
3:21:17 PM                                                                                                                    
REPRESENTATIVE GRUENBERG opined  there is a military  term of art                                                               
when  surrendering  under conditions  they  are  not supposed  to                                                               
CAPTAIN  DUNBAR  agreed to  include  clarifying  language as  the                                                               
substance of the provision is good.                                                                                             
REPRESENTATIVE GRUENBERG asked whether  there is something in the                                                               
bill that  makes it  a military  crime, not  civilian crime.   He                                                               
suggested that  if the executive officer  requires the commanding                                                               
officer to do something it is a type of mutiny.                                                                                 
CAPTAIN DUNBAR advised that mutiny  has a very particular name in                                                               
the military and  there is a mutiny provision.   He said the AKNG                                                               
would look to the precedent of  the UCMJ for the determination of                                                               
whether it was mutiny or a subordinate compelling surrender.                                                                    
REPRESENTATIVE  GRUENBERG  asked  why  this is  drafted  to  only                                                               
criminalize  the  subordinate,  what if  the  commanding  officer                                                               
gives  up  his command  and  doesn't  have  to, there  should  be                                                               
punishment for the commanding officer.                                                                                          
CAPTAIN DUNBAR  opined that there  is always a  higher commanding                                                               
officer  until   reaching  the  [governor   of  the   state]  and                                                               
surrendering ...                                                                                                                
REPRESENTATIVE GRUENBERG  interjected that  he is  discussing the                                                               
CAPTAIN  DUNBAR continued  that  the commander  is disobeying  an                                                               
order,  such  as  wrongfully surrendering,  engaging  in  mutiny,                                                               
misbehavior in front of the  enemy, or deserting, but it wouldn't                                                               
be this provision.                                                                                                              
REPRESENTATIVE  GRUENBERG  asked him  to  determine  why this  is                                                               
drafted  solely  for  the subordinate,  and  asked  whether  this                                                               
should  be  amended  to  include  the  commanding  officer.    He                                                               
clarified that he is discussing the unit commander.                                                                             
3:24:19 PM                                                                                                                    
CHAIR LEDOX  referred to Sec.  26.05.610, "Improper  Hazarding of                                                               
vehicle, aircraft,  or vessel," page  44, lines 18-28,  and asked                                                               
the definition of hazarding.                                                                                                    
CAPTAIN  DUNBAR  explained  it  is a  term  of  art  specifically                                                               
defined  within the  Manual for  Courts-Martial, and  generally a                                                               
person takes  unnecessary risks with  a vehicle or ship  and puts                                                               
it  at risk  of damage.   He  remarked that  the maximum  penalty                                                               
under the federal law is death  because the idea that a commander                                                               
when  commanding a  battle ship  is unnecessarily  running it  up                                                               
against a reef and losing  this vessel, thereby losing a conflict                                                               
or  battle.   This provision  has been  amended because  the AKNG                                                               
does not have  vessels except several small  zodiacs, or aircraft                                                               
carriers,  but  it does  apply  to  aircraft  and vehicles.    An                                                               
example  is  people joy  riding  in  a  tank,  he said,  and  the                                                               
penalties have been drastically reduced.                                                                                        
CHAIR LEDOUX  asked about  a person  running a  red light  with a                                                               
CAPTAIN DUNBAR explained that if the  car was the property of the                                                               
United  States  the  person  could   be  prosecuted  under  this.                                                               
Practically  speaking,  he  noted,   they  probably  wouldn't  be                                                               
prosecuted  as  they  would  have to  be  driving  willfully  and                                                               
wrongfully, more than negligently running a red light.                                                                          
CHAIR LEDOUX expressed  a problem with his answer in  that if the                                                               
military  is "probably  not  going to  do  this," there  probably                                                               
shouldn't be a  law letting the military do it.   She pointed out                                                               
there is  always the question  of, why are  you doing it  to this                                                               
person and not to that person.                                                                                                  
3:27:57 PM                                                                                                                    
REPRESENTATIVE GRUENBERG pointed out that  this is a very serious                                                               
portion of  this code and should  not be tossed out.   He offered                                                               
that in the  event someone is negligently driving a  car they are                                                               
not going to be prosecuted under  this and will be prosecuted for                                                               
the traffic offense.   There is a problem, he  suggested, in that                                                               
there is  not a provision  for recklessness and there  should be.                                                               
He  noted  that   possibly  the  genesis  of  this   was  from  a                                                               
jurisdiction  that  didn't  have  that  intermediate  phase,  but                                                               
Alaska does.                                                                                                                    
CAPTAIN  DUNBAR offered  that Representative  Gruenberg's comment                                                               
might  resolve some  of  Chair LeDoux's  concerns  to reduce  the                                                               
penalties in  the negligence provision  - reduce  [negligence] to                                                               
six-months, with reckless being one-year may address ...                                                                        
CHAIR LEDOUX agreed it would address some of her concerns.                                                                      
REPRESENTATIVE GRUENBERG  offered an antidote of  a fighter pilot                                                               
turning his aircraft left instead of  right in order to be caught                                                               
and the  aircraft was lost.   He described that as  negligent not                                                               
reckless, and warned to be careful when eliminating things.                                                                     
CHAIR LEDOUX pointed  out that the discussion  is not eliminating                                                               
anything,  but  discussing  the   idea  that  there  be  willful,                                                               
reckless, and negligent.                                                                                                        
3:29:55 PM                                                                                                                    
CHAIR  LEDOUX referred  to Sec.  26.05.609, "Property  other than                                                               
military  property; waste,  spoilage, or  destruction," page  44,                                                               
lines 12-17, which read:                                                                                                        
     A  member  of the  militia  who  wilfuly 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  by   up  to  one  year   of  confinement,  by                                                                    
     separation  with  characterization up  to  dishonorable                                                                    
     discharge,  and by  such other  punishment as  a court-                                                                    
     martial may direct.                                                                                                        
CHAIR LEDOUX asked why this provision is in the bill.                                                                           
CAPTAIN  DUNBAR offered  that  the language  was  taken from  the                                                               
state model code and he will  provide a more detailed answer.  He                                                               
remarked there  are provisions for  looting and presumably  it is                                                               
not speaking  to other civilian  properties, and it could  be the                                                               
property  the military  is in  control  of that  is not  military                                                               
property and some other civilian agency ...                                                                                     
CHAIR LEDOUX  interjected that Captain  Dunbar could get  back to                                                               
the committee to explain.                                                                                                       
3:31:22 PM                                                                                                                    
CHAIR  LEDOUX referred  to Sec.  26.05.611, "Drunken  or reckless                                                               
operation of a vehicle, aircraft,  or vessel," beginning page 44,                                                               
line  29.   Chair LeDoux  asked Ms.  Wallace, under  the criminal                                                               
code, whether  first time  offenders are  subject to  one-year in                                                               
imprisonment for a DUI.                                                                                                         
MS. WALLACE  responded that she  would research the  question and                                                               
get back to the committee in a moment.                                                                                          
CAPTAIN DUNBAR offered the explanation  contained in Article 109,                                                               
Federal UCMJ, regarding Sec. 26.05.609,  and acknowledged that he                                                               
misspoke as  it is a situation  where soldiers or airmen  are not                                                               
stealing or looting property, but  are destroying or damaging the                                                               
property of  another person.   He  read the  definition contained                                                               
within the Manual for Courts-Martial, as follows:                                                                               
     Wastes or spoils as used  in this article refer to such                                                                    
     wrongful   acts  of   voluntary   destruction  of,   or                                                                    
     permanent  damage to,  real  property  as burning  down                                                                    
     buildings,  burning  piers,  tearing  down  fences,  or                                                                    
     cutting  down trees.    The  destruction is  punishable                                                                    
     whether  it done  wilfully,  that  is intentionally  or                                                                    
     recklessly,  added  to  a  culpable  disregard  of  the                                                                    
     perceivable consequences of some voluntary act.                                                                            
CHAIR  LEDOUX  expressed  that she  understands  the  reason  for                                                               
including sexual  assault in  the bill  even though  it is  not a                                                               
military crime, but  not other things included in  the bill, such                                                               
as that  provision.  She asked  why that one provision  is picked                                                               
out as something  the military wants to prosecute,  as opposed to                                                               
Alaska's entire  penal code, and  noted the entire penal  code is                                                               
not incorporated into the bill.                                                                                                 
3:35:16 PM                                                                                                                    
CAPTAIN DUNBAR  related that this  was a military offense  in the                                                               
state  model code  and  was not  one of  the  offenses they  went                                                               
through and  wanted to add such  as, DUI and sexual  assault.  He                                                               
used the  example of burning  down someone's house and  noted the                                                               
person would  be charged under  state criminal law.   He offered,                                                               
for  example,  a  junior  enlisted  soldier  shoveling  snow  and                                                               
recklessly, not intentionally,  broke a window.  It  would not be                                                               
a criminal  charge, but  the military would  use this  offense to                                                               
conduct a  nonjudicial punishment or potential  court-martial, he                                                               
explained.  He expressed that he  does not believe these types of                                                               
offenses  are completely  subsumed  by  existing Alaska  criminal                                                               
CHAIR LEDOUX  pointed out that under  this example it would  be a                                                               
criminal offense  whether the prosecutors choose  to prosecute or                                                               
not, that's a totally different question.                                                                                       
CAPTAIN DUNBAR said  that examples do exist where  a person would                                                               
not be criminally prosecuted.                                                                                                   
3:37:36 PM                                                                                                                    
MS.  WALLACE  explained  that  the  current  DUI  provisions  are                                                               
governed  by AS  28.35.030,  and generally  a DUI  is  a class  A                                                               
misdemeanor with  a sentence dependent  upon various  factors and                                                               
exceptions.  She  asked Chair LeDoux to repeat her  question as a                                                               
lot of  the sentencing  comes into a  case-by-case basis  and the                                                               
factors apparent with every incident prosecuted.                                                                                
CHAIR LEDOUX  restated her  question and  asked whether  a first-                                                               
time DUI was subject to one-year in jail.                                                                                       
MS. WALLACE responded that, as it  is a class A misdemeanor it is                                                               
up to one-year  in jail, but not less than  72 consecutive hours,                                                               
if there  are certain protections  available.  She  suggested the                                                               
Department of  Law comment on prosecuting  specific instances and                                                               
crimes as they prosecute these cases  on a regular basis and have                                                               
more specialized knowledge relating to hypothetical situations.                                                                 
CHAIR LEDOUX agreed.                                                                                                            
3:39:39 PM                                                                                                                    
NANCY  MEADE,  General  Counsel,  Office  of  the  Administrative                                                               
Director, Alaska  Court System, said  that the Department  of Law                                                               
would know  better and she  just happens to know  that first-time                                                               
DUI  standard is  3-days, 72-hours,  although it  could go  above                                                               
that for  a class B misdemeanor  with a maximum of  90-days.  She                                                               
offered that  the second DUI  is 20-days  in jail, and  the third                                                               
DUI approaches felony and is 120-days in jail.                                                                                  
CHAIR  LEDOUX   asked  the  maximum  allowed   for  a  first-time                                                               
MS. MEADE opined that a first-time  DUI is a class B misdemeanor,                                                               
according  to Ms.  Wallace, of  which  have a  90-day maximum  in                                                               
jail.  She advised that DUIs  have a specific jail term contained                                                               
within  the  statute  and  those   only  theoretically  could  be                                                               
exceeded, and  are three-days  in jail.   In her  experience, she                                                               
said, first-time DUI always receives  3-days in jail unless there                                                               
is  something  extraordinary, such  as  an  extremely high  blood                                                               
alcohol content  in which  case it  could go  to 5-days  in jail.                                                               
She remarked  that it would be  quite unheard of to  have 90-days                                                               
or one-year in jail for a first-time DUI.                                                                                       
3:41:14 PM                                                                                                                    
CHAIR  LEDOUX referred  to Sec.  26.05.611, "Drunken  or reckless                                                               
operation of a vehicle, aircraft,  or vessel," beginning page 44,                                                               
line 29, and advised this section  needs work as there is a large                                                               
difference between a careless or  reckless manner while under the                                                               
influence.   She  advised that  generally careless  is negligence                                                               
which is  just a violation.   She stated she has  no problem with                                                               
the military  exerting a harsher  sentence for someone  driving a                                                               
military vehicle, but this includes  a totally off duty person in                                                               
the AKNG because  the [AKNG decided its soldiers  and airmen were                                                               
under AKNG] 24/7.  She  stressed problems with subjecting someone                                                               
who may have just run a  stop sign, normally a violation, to one-                                                               
year in jail.                                                                                                                   
CAPTAIN DUNBAR  asked whether Chair  LeDoux meant running  a stop                                                               
sign while intoxicated.                                                                                                         
CHAIR  LEDOUX explained  there are  two sections:  (1) is  just a                                                               
careless  or  reckless  manner;  and (2)  is  operate  under  the                                                               
influence of alcohol.                                                                                                           
UNIDENTIFIED SPEAKER (indisc.)                                                                                                  
CHAIR LEDOUX read  "(a) a member of the military  who operates or                                                               
physically controls a  nonmilitary ... in a  careless or reckless                                                               
manner or while impaired by a substance."                                                                                       
UNIDENTIFED SPEAKER said "therefore..."                                                                                         
CAPTAIN DUNBAR said, you are  correct.  He advised this provision                                                               
was  brought  in from  the  Federal  UCMJ  and it  probably  does                                                               
subject  the National  Guard's soldiers  and airmen  to a  higher                                                               
standard than a typical civilian standard.                                                                                      
CHAIR LEDOUX offered  that she does not have a  problem with that                                                               
while they are on duty, but  has real problems with it while they                                                               
are not on duty.                                                                                                                
3:44:09 PM                                                                                                                    
REPRESENTATIVE GRUENBERG said the  term "careless" must have been                                                               
taken from another jurisdiction because  it is not used in Alaska                                                               
and suggested substituting "negligence."                                                                                        
CAPTAIN DUNBAR  agreed, and  said it was  taken from  the Federal                                                               
UCMJ as  it clearly is  a term it uses,  and he will  continue to                                                               
work on  that.   In re-reading  this, he  related, he  is curious                                                               
that maybe  the "or"  was supposed  to be an  "and," which  it is                                                               
materially important.                                                                                                           
REPRESENTATIVE GRUENBERG  pointed out that  "or" is used  in line                                                               
29 also, so it is disjunctive throughout.                                                                                       
CHAIR LEDOUX said this is being  marked as the committee is aware                                                               
there is perhaps a problem.                                                                                                     
3:45:12 PM                                                                                                                    
CHAIR LEDOUX  referred to Sec. 26.05.617,  "Provoking speeches or                                                               
gestures," page 48, lines 11-14, which read:                                                                                    
          A member of the militia who uses provoking or                                                                         
     reproachful words or gestures  toward another member of                                                                    
     the militia  shall be punished  by up to six  months of                                                                    
      confinement and by such other punishment as a court-                                                                      
     martial may direct.                                                                                                        
CHAIR LEDOUX  asked whether it  means that if one  militia person                                                               
says to  another "you're an idiot"  or worse, they can  be jailed                                                               
for up  to six  months, and  can this happen  will they  are off-                                                               
CAPTAIN DUNBAR  read the  definition [located  in the  Manual for                                                               
     As  used  in  this article  provoking  and  reproachful                                                                    
     describe those words or gestures  which are used in the                                                                    
     presence of the  person to whom they  are directed, and                                                                    
     which  a reasonable  person would  expect  to induce  a                                                                    
     breach of the peace under the circumstances.                                                                               
CAPTAIN  DUNBAR described  that as  essentially "fighting  words.                                                               
He continued reading:                                                                                                           
     These  words and  gestures do  not include  reprimands,                                                                    
     sensors, reproofs  and the like  which may  be properly                                                                    
     administered in  the interest of  training, efficiency,                                                                    
     or the discipline in the armed forces.                                                                                     
CAPTAIN DUNBAR explained  that a reasonable person  would have to                                                               
expect that  the provoking speeches  or gestures would  provoke a                                                               
breach of the peace.                                                                                                            
3:47:00 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  expressed   that  he  has  significant                                                               
problems with this  provision having lived with guys  on the deck                                                               
division for  a few years.   Although, he offered,  if discussing                                                               
inciting a riot, it should be re-drafted.                                                                                       
CAPTAIN DUNBAR explained that this  is one of the few provisions,                                                               
"and  may be  an error  on my  part," where  the Alaska  National                                                               
Guard's  punishments are  potentially harsher  than the  UCMJ, in                                                               
that the UCMJ has no discharge.   Perhaps, he said, the potential                                                               
punishments available  could be reduced.   Although, he stressed,                                                               
his command  would be very upset  if this was taken  out entirely                                                               
because  it  is a  tool  quite  often  used  in the  active  duty                                                               
REPRESENTATIVE   GRUENBERG  asked   Captain   Dunbar  to   review                                                               
Anniskette v.  State of Alaska, 489  P.2d 1012 (1971) in  that it                                                             
dealt with  a policeman upset  that someone on the  telephone was                                                               
swearing at him,  and the person was convicted  of disturbing the                                                               
peace, or something  like that.  He commented that  the case went                                                               
up  to the  Supreme  Court who  reversed and  said  that this  is                                                               
something that should have been dealt with without ...                                                                          
3:48:41 PM                                                                                                                    
CHAIR LEDOUX stated  she understands where command  may be coming                                                               
from, but she  has real problems when discussing  off duty people                                                               
in that  she knows how  conversations amongst regular  people can                                                               
go and sometimes they get pretty mad.                                                                                           
CAPTAIN DUNBAR  responded that another important  limiting factor                                                               
is that this is only toward another member of the militia.                                                                      
CHAIR LEDOUX surmised that would  be like a rule that legislators                                                               
can  only  say  nasty  things   against  another  member  of  the                                                               
legislature.  She expressed that if the person is off duty ...                                                                  
CAPTAIN DUNBAR said  that in this case they would  have to be off                                                               
duty and  speaking to  each other face-to-face  and not  over the                                                               
telephone, as  that is  how it  is defined  in the  definition he                                                               
read previously.   He said,  "You have to be  physically face-to-                                                               
face and a  reasonable person has to be able  to conclude that it                                                               
would provoke them to a breach of the peace."                                                                                   
REPRESENTATIVE  LYNN noted  there  are many  colorful words  many                                                               
people have  used from time-to-time.   He offered that it  is one                                                               
thing to use this language as  a matter of expression and another                                                               
to get into someone's face, which goes to "fighting words."                                                                     
3:50:58 PM                                                                                                                    
REPRESENTATIVE  MILLETT  pointed out  that  it  leaves a  lot  to                                                               
CAPTAIN DUNBAR  replied that  it is intended  to be  a reasonable                                                               
person standard  that is objective,  but would take  into account                                                               
such things  as the  age and  rank, and  whether these  words are                                                               
likely to provoke that particular  person.  He suggested that the                                                               
defense attorney and prosecutor would  draw upon federal case law                                                               
that this  is based upon to  determine cases that fit  into their                                                               
arguments.   He said  he agrees  with comments  that the  AKNG is                                                               
prosecuting service people  off duty, and that it  is larger than                                                               
other  states have  contemplated.   Command  strongly wants  this                                                               
provision,  he  stressed,  thereby  giving AKNG  the  ability  to                                                               
nonjudicially punish people in the event  of an array or a verbal                                                               
altercation  between  two  off  duty  soldiers  or  airmen.    He                                                               
described the provision as an "important tool to have us do so."                                                                
REPRESENTATIVE MILLETT  stressed that  she is  uncomfortable with                                                               
the provision  because a person  may not know the  other person's                                                               
history and;  therefore, does  not know  what will  provoke them.                                                               
She offered that  what provokes Captain Dunbar  and what provokes                                                               
her may  not be  covered in  case law, and  that case  law cannot                                                               
take  into  account  every   conversation  or  every  provocative                                                               
conversation she may have.                                                                                                      
3:54:18 PM                                                                                                                    
CAPTAIN  DUNBAR  referred  to  information  provided  within  the                                                               
Manual of Courts-Martial, and read:                                                                                             
     It is not necessary that the accused have knowledge of                                                                     
        the person toward whom the words or gestures are                                                                        
     directed to the person subject to the code.                                                                                
CAPTAIN DUNBAR  explained that the  person does not have  to know                                                               
the  other person  is  service  member for  this  to  apply.   He                                                               
expressed  that   the  AKNG  will  prosecute   a  service  member                                                               
regardless of  whether that service  member had a  specific issue                                                               
that would set them off.  He  agreed there is no question this is                                                               
a broad  power, but the AKNG  holds its soldiers and  airmen to a                                                               
higher  standard than  the standard  civilians expect.   He  said                                                               
while it  may be  okay for  civilians to get  up in  each other's                                                               
face and  scream and cuss, a  soldier or airman swears  to uphold                                                               
the  Alaska  State  Constitution   and  follow  every  order  and                                                               
regulation, and  they are expected  to give up certain  things of                                                               
which perhaps the ability to swear  in someone's face is one.  He                                                               
offered that he is sympathetic  to the thought that six-months in                                                               
prison is a long time.                                                                                                          
3:55:32 PM                                                                                                                    
CHAIR  LEDOUX reminded  Captain Dunbar  that the  Alaska National                                                               
Guard (AKNG) is  the military as a governmental  entity, but that                                                               
AKNG is  also an employer.   As an employer,  she may be  able to                                                               
fire her  employees for swearing, but  she can't make them  go to                                                               
jail because  she doesn't  like what  they are  doing.   The jail                                                               
element of this is a problem, she stressed.                                                                                     
CAPTAIN DUNBAR  offered the  thought of  removing the  ability to                                                               
put service men  in prison and to discharge them,  the AKNG would                                                               
still be  able to use  nonjudicial punishment to fine  and reduce                                                               
them in rank, thereby, receiving  punishment.  He argued that the                                                               
AKNG is much more than just  an employer in that a person commits                                                               
themselves  to an  organization that  has the  power of  life and                                                               
death over  them.   He related  that it  goes beyond  the typical                                                               
employer/employee  relationship,  but   he  is  sympathetic  that                                                               
putting someone in jail for six-months might be severe.                                                                         
CHAIR  LEDOUX  reminded Captain  Dunbar  that  the committee  has                                                               
amended other broadly drafted sections.                                                                                         
3:57:21 PM                                                                                                                    
REPRESENTATIVE LYNN  pointed out  that the Alaska  National Guard                                                               
(AKNG)  is  on  duty  24/7,  and he  wanted  to  be  certain  the                                                               
committee separates this from insubordination.   He asked whether                                                               
there  can be  insubordination  for  an off  duty  member in  the                                                               
civilian realm if the member  knows the person they are directing                                                               
these words to is a superior officer.   He said there should be a                                                               
clear  distinction regarding  insubordination when  on duty,  and                                                               
off duty.                                                                                                                       
CAPTAIN DUNBAR agreed  that there is a different  kind of offense                                                               
when addressing a  superior officer, and the ability  to impose a                                                               
sentence of  confinement in disrespect toward  a superior officer                                                               
has  been   deleted.     Although,  he   said,  the   ability  to                                                               
dishonorably discharge  remains in the provision,  Sec. 26.05.589                                                               
and noted  that at  the request of  Chair LeDoux,  subsection (b)                                                               
was added, page 39, lines 7-8, which read:                                                                                      
        (b) A court-martial may not impose a sentence of                                                                        
     confinement under this section.                                                                                            
CAPTAIN DUNBAR remarked  there was a contradiction  in that where                                                               
it stands  now, as a  service member could disrespect  a superior                                                               
officer  and   not  be   confined,  but   if  a   service  member                                                               
disrespected  another  enlisted  service  member  they  could  be                                                               
confined.   Representative  Lynn  is correct  in  that there  are                                                               
different  insubordination provoking  gestures and  disrespecting                                                               
superior   officer  are   distinct  provisions   and  there   are                                                               
provisions for each.                                                                                                            
4:00:11 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  conveyed that  this provision  needs to                                                               
be discussed at  length with each member  individually by Captain                                                               
Dunbar, particularly because  there are these others  on page 39.                                                               
He asked whether  this is really needed when most  of the conduct                                                               
concerned about  probably is, or should  be, in that part  of the                                                               
bill.   He suggested that  Captain Dunbar advise command  that if                                                               
this  provision  remains,  it should  start  from  the  narrowest                                                               
possible  language,  and then  justify  going  beyond that.    He                                                               
advised that this  is a state legislature by  a constitution that                                                               
protects individual rights  and this is way  beyond anything that                                                               
would  even provide  a threat.   He  conveyed that  unless he  is                                                               
convince  this provision  is necessary  he will  not support  the                                                               
CHAIR  LEDOUX  offered that  the  committee  is aware  there  are                                                               

Document Name Date/Time Subjects
HB 126-CS Version G.pdf HJUD 11/17/2015 1:30:00 PM
HB 126
HB 126-CS Version G-Memo.pdf HJUD 11/17/2015 1:30:00 PM
HB 126
HB 126-CS Version G-Presentation.pdf HJUD 11/17/2015 1:30:00 PM
HB 126
HB 126-CS Version G-Maximum Punishments Matrix.pdf HJUD 11/17/2015 1:30:00 PM
HB 126