Hawaii Administrative Rules, Title 7 — Department of Defense

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Subtitle 1 MILITARY JUSTICE

Chapter 1 GENERAL PROVISIONS

Haw. Code R. § 7-1-1 General guidance

(a) Military justice is not and shall not be used as a substitute for military leadership. Providing military leadership remains the responsibility of all officers and noncommissioned officers of the state military forces. Guidance and counseling shall be given to any member of the state military forces by the member's chain of command at the first sign of a disciplinary problem. The commanding officer of each unit shall establish informal procedures to deal with disciplinary problems.

(b) If the use of informal procedures fails to resolve the member's disciplinary problem, the Hawaii Code of Military Justice, (cited in this subtitle as chapter 124A, Hawaii Revised Statutes, or "HRS") may be used.

(c) If punishment must be administered, then consideration shall first be given to the use of nonjudicial punishment. The commanding officer shall administer nonjudicial punishment fairly, taking into account the facts and circumstances of each case. Repeat offenses may be considered as being more severe, and the degree of punishment may be increased. If informal procedures and nonjudicial punishment fail to resolve the member's disciplinary problem, or if the member's offense is serious, court-martial action may be taken to punish offenses of chapter 124A, HRS, or chapter 7-9.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: None)

Haw. Code R. § 7-1-2 Rules of procedure and evidence

(a) The procedures in courts-martial cases, including modes of proof and rules of evidence, to the extent applicable and not governed by chapter 124A, HRS, and this subtitle, shall be the same as those in:

(1) The Hawaii rules of penal procedure (for procedure);

(2) The Hawaii rules of evidence, chapter 626, HRS (for evidence); and

(3) The Hawaii rules of penal procedure and the rules of the supreme court of the State of Hawaii (for judicial appellate procedure).

(b) In addition to this subtitle, the Manual for Courts-Martial, United States, as it existed on 1 July 1984, may be used as a procedural guide in military justice actions by the state military forces. If any part of the Manual for Courts-Martial, United States, is in conflict with state law or this subtitle, the state law or this subtitle shall govern. If any part of the Manual for Courts-Martial, United States, has been declared invalid by a court of military review, the United States Court of Military Appeals, or any other federal court, the court decision, if final, may be followed as a procedural guide unless the interpretation conflicts with the state law or this subtitle, in which case the state law and this subtitle shall govern.

History

• [Eff: FEB 11 1985; am APR 27 1989] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-61)

Haw. Code R. § 7-1-3 Forms

Notwithstanding any other statement in this subtitle with reference to specific United States Department of Defense, or United States Army or United States Air Force forms, the forms in the exhibits in this subtitle may be used interchangeably by the various services of the state military forces in the administration of military justice. Failure to use the forms prescribed in this subtitle or those found in United States Army or Air Force directives shall not constitute jurisdictional error or in any way invalidate the proceeding. If United States Department of Defense, Army, or Air Force forms are used, care shall be taken to modify those forms where necessary to comply with chapter 124A, HRS. All references to the "Uniform Code of Military Justice" or "Manual for Courts-Martial, United States" shall be deleted, and appropriate references to chapter 124A, HRS, this subtitle, or both, shall be substituted. Reference to an "article" of chapter 124A, HRS (rather than to a "section") shall be deemed to refer to the appropriate "section". Forms in this subtitle may be reproduced as necessary.

History

• [Eff: FEB 11 1985; am APR 27 1989] (Auth: HRS § 124A-171) (Imp: HRS § 124A-61)

Haw. Code R. § 7-1-4 Appointment of judge advocates and legal officers

Upon recommendation of the state judge advocate, the adjutant general may appoint officers of the state military forces as judge advocates and legal officers.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-6)

Haw. Code R. § 7-1-5 Certification of trial and defense counsel and law officers

The state judge advocate shall certify officers of the state military forces who are competent and qualified for duty, as trial and defense counsel, and law officers.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-1)

Haw. Code R. § 7-1-6 Definitions

All words and phrases in this subtitle shall have the same meaning as used in chapter 124A, HRS.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-1)

Haw. Code R. § 7-1-7 Delegation of authority

Pursuant to the authority vested in the governor, and under section 124A-171(a), HRS, the governor of Hawaii has delegated all authority vested in the governor under chapter 124A, HRS, except the authority given to the governor by sections 124A-36 and 124A-41, to the adjutant general. The governor has further authorized the adjutant general to subdelegate the authority that has been delegated to the adjutant general.

A copy of the formal delegation of authority is included in the exhibit entitled "Executive Order", dated November 23, 1984, located at the end of this subtitle.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS §§ 124A-36, 124A-171)

Haw. Code R. § 7-1-8 Rights during investigations

Any person suspected or accused of any offense under chapter 124A, HRS, or chapter 7-9, shall have the right to remain silent, and the right to counsel during any investigation. DA Form 3881, a copy of which is set forth in the exhibit entitled "Annex 4", and AF Form 1168, a copy of which is set forth in the exhibit entitled "Annex 4B", both dated 1 October 1988, and located at the end of this subtitle, may be used as guides by investigating officers; provided appropriate modifications shall be made in accordance with section 7-1-3.

History

• [Eff: FEB 11 1985; am APR 27 1989] (Auth: HRS § 124A-171) (Imp: HRS § 124A-53)

Chapter 2 NONJUDICIAL PUNISHMENT

Haw. Code R. § 7-2-1 General provisions

Under section 124A-21, HRS, a commanding officer may impose non-judicial punishment upon military personnel of the commanding officer's command for minor offenses. The commanding officer shall distinguish non-judicial punishment from non-punitive disciplinary measures which may include but shall not be limited to:

(1) Adverse conduct and efficiency ratings;

(2) Admonitions or reprimands; or

(3) Reductions for inefficiency.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-2 Offenses punishable under section 124A-21, HRS

(a) The individual shall have committed an offense in violation of chapter 124A, HRS, or chapter 7-9.

(b) The Offense committed shall also be of a minor nature, as "judicial" methods of dealing with criminal activity (for example, arrest and imprisonment) are not available in non-judicial punishment. The nature of the offense and the circumstances surrounding its commission are among the factors which shall be considered in determining whether or not the offense is minor in nature. Generally, the term "minor" includes misconduct not involving any greater degree of criminality than is involved in the average offense tried by a summary court-martial.

(c) Due regard shall be given to the personal history of the offender in determining whether to use the provisions of section.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-3 Persons who may be punished

A commanding officer may impose non-judicial punishment only upon members of the state military forces:

(1) Of the commanding officer's command (including any personnel attached to the commanding officer's command); and

(2) Who are on state active duty, duty status other than state active duty, or while under lawful orders to be in either duty status.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-4 Who may impose non-judicial punishment

(a) Non-judicial punishment may be imposed by any commanding officer, unless a superior commanding officer has restricted or withheld the authority to impose punishment on certain categories of military personnel or offenses. For example, general officers in command may reserve to themselves the authority to impose non-judicial punishment on officers within their command.

(b) A detachment commander shall be an officer in charge as mentioned in section 124A-21(c), HRS, and shall have the same authority as the commanding officer to impose non-judicial punishment upon members of the officer's detachment.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-5 Authorized punishments

(a) The non-judicial punishments that a commanding officer may impose shall be as set forth in the exhibit entitled "Annex 1" dated 1 November 1984, located at the end of this subtitle, which is made a part of this section. As indicated in the exhibit, a field grade commanding officer may impose a more severe non-judicial punishment than a company grade or warrant officer in command.

(b) If the company grade or warrant officer in command does not believe that the officer's punishment authority is adequate in light of the offense, the officer may forward the case to the officer's field grade commanding officer and request the field grade commanding officer to exercise punishment authority under section 124A-21, HRS.

(c) A sample document for transmitting a case for action by a superior commanding officer is set forth in the exhibit entitled "Annex 2" dated 1 November 1984, located at the end of this sub-title, which is made a part of this section.

(d) A superior officer shall not:

(1) Direct that a subordinate commanding officer take action under section 124A-21, HRS; or

(2) Dictate to a subordinate commanding officer the type or amount of punishment to be administered under section 124A-21, HRS.

(e) A superior commanding officer may refer a disciplinary matter to a subordinate commanding officer for appropriate action. In such a case, the subordinate commanding officer may take any action specified in section 7-4-6. Additionally, the subordinate commanding officer may initiate court-martial action unless otherwise prohibited by this subtitle.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-6 Procedure generally

(a) Before taking action to impose non-judicial punishment, a commanding officer shall determine that:

(1) The member's duty status is one to which chapter 124A, HRS applies, as indicated in sections 124A-1 and 124A-2, HRS;

(2) The alleged misconduct actually took place;

(3) The misconduct was an offense under chapter 124A, HRS;

(4) The accused member committed the offense; and

(5) Non-judicial punishment is appropriate to the offense in view of the severity of the offense and the member's past record.

(b) The requirements set forth in subsection (a) shall be addressed promptly through investigation. Promptness in investigating a report of an offense is critical to the member's rights in the event trial by court-martial is conducted.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-7 Elements of offenses

The commanding officer shall consult the paragraph entitled "Proof found under the appropriate punitive article in Chapter XXVIII of the Manual for Courts-Martial, United States, as it existed on 1 July 1984, to determine whether an offense has been committed. A table cross-referencing the punitive articles of chapter 124A, HRS to the punitive articles in Chapter XXVIII, Manual for Courts-Martial, United States is set forth in the exhibit entitled "Annex 2A" dated 1 November 1984, located at the end of this subtitle, which is made a part of this section.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-8 Evidence required

Although no formal rules of evidence or standards of proof apply to any phase of non-judicial punishment proceedings, the commanding officer shall recognize that the suspected offender is entitled to demand trial by court-martial at which proof beyond a reasonable doubt by competent evidence is a prerequisite to punishment. Accordingly, the commanding officer shall consider whether proof beyond a reasonable doubt by competent evidence would be obtainable before initiating non-judicial punishment. If competent evidence which would provide proof beyond a reasonable doubt does not exist, non-judicial punishment shall not be warranted.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-9 Notification

(a) The first stage of a proceeding to impose non-judicial punishment is the commanding officer's notification to the individual concerned. The elements of this step shall be as set forth on AGHI Form SJAG 1, a copy of which is set forth on the exhibit entitled "Annex 3" dated 1 November 1984, located at the end of this subtitle, which is made a part of this section.

(b) The notification portion of the proceeding shall contain the elements set forth in sections 7-2-10 to 7-2-13.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-10 Statement of the offense

The commanding officer shall inform the member that the commanding officer intends to impose non-judicial punishment, and shall give the member a brief description of the offense or offenses that the commanding officer believes the member has committed.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-11 Right to demand trial by court-martial

The commanding officer shall inform the member that the member has the right to demand court-martial in lieu of the non-judicial punishment action.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-12 Statement of maximum punishment

The commanding officer shall inform the member,of the maximum punishment authorized if non-judicial punishment is imposed, and the maximum punishment that could be imposed by each type of court-martial.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-13 Right to remain silent

The commanding officer shall inform the member that the member has a right to remain silent and that anything the member says can and will-be used against the member in the non-judicial punishment action or any subsequent action.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-14 Member's election of rights; time to reply

The member shall elect whether to submit to the non-judicial punishment proceedings or to demand trial by court-martial. The member shall make this election on AGHI Form SJAG la, a copy of which is set forth on the exhibit entitled "Annex 5" dated 1 November 1984, located at the end of this subtitle, which is made a part of this section.

The member shall have three duty days to reply to the notification of intent to impose non-judicial punishment, unless this period is waived. The member may submit written justification for a longer period of time and the commanding officer may extend the time in a proper case. A duty day is a calendar day during which the member is scheduled to perform duty.

Examples:

(1) The unit's monthly drill dates are 2 and 3 June and 2 and 3 July. If the notification is given on 2 June, the reply may be required on 2 July;

(2) The unit drills on 2 and 3 June and begins its fifteen days annual training on 2 July. If the notification is given on 3 June, the reply may be required on 3 July.

The duty day during which the notification is heard may be included in computing the three day period. If the member fails to reply within the time allowed, the proceedings may be continued; or terminated and court-martial action initiated.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-15 Demand for trial by court-martial

If the member demands trial by court-martial, the non-judicial punishment action shall be terminated. The commanding officer shall then decide whether to initiate court-martial action.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-16 Waiver of court-martial

(a) If the member waives court-martial and does not submit matters in the member's own behalf, the commanding officer may immediately proceed to impose punishment.

(b) If the member waives court-martial but does submit matters in defense, extenuation, or mitigation, orally or in writing, the commanding officer shall consider these matters. If the commanding officer determines that there is insufficient evidence to support the allegations against the member, or that there is some other valid reason for not punishing the member, the non-judicial punishment proceeding shall be terminated and all records concerning the proceeding shall be destroyed.

(c) If, after considering submitted matters, the commanding officer is convinced that the member is guilty of the offense or offenses charged, and that non-judicial punishment is appropriate, the commanding officer shall impose punishment.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-17 Conduct of proceedings

Non-judicial punishment proceedings shall be conducted personally by the commanding officer in the presence of the member concerned. If the member fails or refuses to report for the proceedings, court-martial charges may be preferred. The exhibit entitled "Annex 6" dated 1 November 1984, located at the end of this subtitle, may be referred to as a guide for conducting non-judicial punishment proceedings.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-18 Imposition of punishment; maximum punishments

(a) The maximum punishment authorized in non-judicial punishment proceedings shall be as provided in the exhibit entitled "Annex 1" dated 1 November 1984, located at the end of this subtitle, which is made a part of this section.

(b) A commanding officer shall not administer punishment for misconduct that has been previously punished by non-judicial punishment or court-martial. Action by a commanding officer taken on an appeal shall not be considered to be "administering punishment" within the meaning of this section. A member who has been charged in a civil court shall not be subject to non-judicial punishment or court-martial action for the same act or acts over which the civil court has exercised its criminal jurisdiction. The commanding officer shall be aware of certain limitations on punishment. The maximum punishment shall be admonition or reprimand and one of the other punishments set forth in Annex 1.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-19 Imposition of punishment; informing the offender

The commanding officer imposing the punishment shall personally announce the punishment to the offender. At this time, the commanding officer shall explain the offender's right to appeal and the procedures to do so. If a fine is imposed, the commanding officer shall set the time by which the fine shall be paid. The maximum period for paying the fine shall be not more than ten calendar days after imposition, unless the commanding officer determines that extraordinary circumstances require a longer period in the interests of justice.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-20 Fines

If a fine is imposed and paid as a result of non-judicial punishment action, the person receiving the money shall pay it to the director of finance, State of Hawaii, within thirty days of the receipt of the money. The exhibit entitled "Annex 7" dated 1 November 1984, located at the end of this subtitle, contains a sample letter of transmittal of a non-judicial punishment fine. If a fine is imposed and not paid when due, court-martial proceedings under the original charges may be instituted as if no non-judicial punishment action has occurred.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-21 Responsibilities after imposition

(a) A commanding officer imposing non-judicial punishment may suspend, mitigate, remit, or set aside that punishment if the commanding officer finds the action is warranted by the circumstances of the case. This power gives the commanding officer an effective means of rehabilitating the offender which is often more valuable than the power to punish. Examples of indorsements to be used in connection with the powers stated in this section are set forth in the exhibit entitled "Annex 8", dated 1 November 1984, located at the end of this subtitle, which is made a part of this section.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-22 Suspension

(a) When punishment is suspended, held in abeyance, or not put into effect for a specified period of time, a probationary period results during which the member is permitted to demonstrate good conduct and efficiency, and provide the member with an incentive to stay out of trouble. The unexecuted portion of any non-judicial punishment may be suspended for a reasonable time not to exceed six months, or until the offender's expiration of present term of service (ETS) day, whichever is earlier.

(b) No favorable personnel actions may be taken during the period of suspension. If, during the period of suspension, the member commits further actions of misconduct, the suspension may be vacated (terminated) and the original punishment put into effect. Unless the suspension is sooner vacated, suspended portions of the punishment shall be remitted, without further action, upon the termination of the period of suspension.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-23 Mitigation

The severity of the punishment called for by the offense may be reduced by mitigating circumstances. Mitigation may be appropriate when the member has demonstrated by a previous record of good conduct and efficiency that the member merits a decrease in punishment.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-24 Remission

Remission is the cancellation of the unserved portion of the punishment. This action may be taken by the commanding officer when appropriate.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-25 Setting aside

The commander may "set aside" non-judicial punishment when it is clear that an injustice has occurred, in which case all rights and privileges shall be returned to the member. This type of action would be necessary in a case where the receipt of previously unknown information convinces the commanding officer that the member is not guilty of an offense for which punishment has been imposed. If the non-judicial punishmentaction is set aside, all records of the proceeding shall be destroyed.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-26 Disposition of AGHI forms SJAG 1 and 1a

Copies of written statements or other documentary evidence pertaining to the case which has been considered by the commanding officer imposing the non-judicial punishment or the commanding officer on appeal shall be attached to the AGHI form SJAG 1. The AGHI form SJAG 1 a which has been completed by the member shall also be attached to it. Copies of the package may be made for distribution.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-27 Distribution of Forms

(a) The original copy of the forms in section 7-2-26 shall be sent to the unit of assignment for filing in the military personnel records of the member, which shall be maintained in the same manner and for the same period as non-judicial punishment actions under the Uniform Code of Military Justice as it existed on 1 July 1988. If the case is appealed, this set of forms shall be forwarded with the appeal.

History

• [Eff: FEB 11 1985; am APR 27 1989] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-171)

Haw. Code R. § 7-2-28 Right of appeal

Every member who receives non-judicial punishment shall have the right to appeal. This right does not conflict with the member's "consent" to the non-judicial punishment proceedings. The member's consent is merely a waiver of the right to demand trial by court-martial and not an admission of guilt. Upon appeal, the next superior commanding officer may set aside the non-judicial punishment action or may approve or reduce, but not increase, the punishment imposed by the member's commanding officer. Appeals shall be handled promptly.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-29 Election to appeal

The commanding officer who imposes non-judicial punishment shall advise the member of the right to appeal (see Annex 6, Part III). The commanding officer shall direct the member to state whether the member is appealing at that time, and to record the decision in Part II of the AGHI Form SJAG 1 a. If the member fails to appeal at the time the member is advised of the right to appeal, the member may not appeal, unless the commanding officer allows additional time not to exceed three duty days, for the member to decide. If the selection to appeal is made at that time, the commanding officer may require the member to undergo the punishment imposed or may defer the punishment pending the outcome of the appeal.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-30 Submission of appeal

Materials relied on in support of an appeal shall be submitted in writing to the commanding officer who imposed non-judicial punishment within a reasonable time after the imposition of punishment. These materials, for example, may be written statements dealing with the offense or with the inappropriateness of the punishment.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-31 Forwarding the appeal

The commanding officer who initially imposed the non-judicial punishment may rebut in writing any statement furnished by the member, and shall transmit the file to the next superior commanding officer for action on the appeal.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-32 Action by reviewing authority

(a) The commanding officer receiving the appeal shall refer the appeal to the designated judge advocate for consideration and advice. The commanding officer shall then consider the advice received, all matters submitted by the member and, if warranted, may set aside the action, modify the punishment, or affirm the non-judicial punishment action.

(b) If the commanding officer sets aside the non-judicial punishment action, the commanding officer shall return the appeal to the commanding officer who imposed punishment together with the decision. Upon receipt of that decision, the commanding officer who imposed punishment shall destroy all local records of the proceeding.

(c) If the commanding officer affirms the action, whether or not the punishment is modified, the commanding officer shall return the appeal together with the decision and appropriate instructions.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-33 Announcement of results

A commanding officer may announce at unit formations and through other appropriate means the final disposition of any case involving the non-judicial punishment of members of the commanding officer's command, including action taken on a previously imposed non-judicial punishment. Any announcement of non-judicial punishment actions (including termination by reason of innocence) is discretionary with the officer who initiated the proceedings. The impact on unit morale and the impairment to job or leadership effectiveness of the individual concerned shall be considered when deciding whether to announce the disposition.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Haw. Code R. § 7-2-34 Vacating suspensions

The suspension of imposition of non-judicial punishment may be vacated by any commanding officer or officer in charge competent to impose upon the offender concerned, punishment of the kind and amount involved in the vacation of suspension. Although formal proceedings shall not be necessary to vacate a suspension of non-judicial punishment, the offender shall be given a meaningful opportunity to rebut or explain the information upon which the proposed vacation is based.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-21, 124A-171) (Imp: HRS § 124A-21)

Chapter 3 THE COURTS-MARTIAL SYSTEM

Haw. Code R. § 7-3-1 Objective of the system

The impartial application of chapter 124A, HRS, and the courts-martial system to all law violators is intended to achieve justice. The principles of law recognized in criminal cases in the courts of the State of Hawaii shall be used by the state military forces in the administration of military justice. The objective of chapter 124A, HRS and the court-martial system it establishes is to create a system of prohibitions, penalties, and correctional measures to deal with conduct that threatens good order, discipline, and safety in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS §§ 124A-31, 124A-61)

Haw. Code R. § 7-3-2 The courts-martial system

(a) Chapters 7-3 to 7-7 deal with general, special and summary courts-martial. The maximum punishments which may be imposed by courts-martial shall be as provided in the exhibit entitled "Annex 9" dated 1 November 1984, located at the end of this subtitle, which is made a part of this section. An accused person shall not be tried by summary court-martial over the accused's objection unless the accused has been permitted to refuse punishment under section 124A-21, HRS. Section 7-5-3 sets out the convening authority's options if the accused refuses trial by summary court-martial.

(b) The procedures for establishing and conducting summary, special, and general courts-martial (including making necessary modifications to the charge sheet) may be substantially those used by the federal military services.

(c) A law officer shall be detailed for a general court-martial as provided in section 124A-45, HRS, and the appointment of the president of a special court-martial shall be subject to the requirements of section 124A-44(f), HRS.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: §§ 124A-21, 124A-31, 124A-44, 124A-45, 124A-61)

Haw. Code R. § 7-3-3 Conviction as criminal conviction

Any court-martial conviction shall constitute a state court criminal conviction.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: None)

Haw. Code R. § 7-3-4 Reviews

Upon conclusion of a court-martial, the authenticated record of trial shall be prepared and forwarded by the trial counsel to the convening authority. Upon receipt by the convening authority, the convening authority shall refer it to the designated staff judge advocate, legal officer, or law specialist for a written review. Upon receipt of that review, the convening authority shall take appropriate action. Other review requirements shall be as provided in section 124A-97, HRS.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS §§ 124A-79, 124A-92, 1248-93, 124A-96, 124A-97)

Haw. Code R. § 7-3-5 Recognizing criminal conduct

An act for which the law provides a penalty is an "offense". In the state military forces, chapter 124A, HRS, and chapter 7-9 set out the types of conduct for which a member may legally be punished. Any question as to whether specific conduct constitutes a violation of the penal provisions of chapter 124A, HRS shall be resolved by contacting the office of the appropriate staff judge advocate, as a member's conduct may be substandard or personally offensive without being an offense.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-111)

Haw. Code R. § 7-3-6 Presumption of innocence

In all court-martial proceedings every person shall be presumed innocent until proven guilty.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: None)

Haw. Code R. § 7-3-7 Self-incrimination and right to counsel

Rights against self incrimination shall be, as provided in section 124A-52, HRS. Any member suspected of having committed an offense of which the member's commanding officer is contemplating court-martial proceedings shall have the right to consult with a lawyer.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS §§ 124A-52, 124A-53)

Haw. Code R. § 7-3-8 Appointment of legal personnel

At a special or general court-martial the trial counsel represents the State of Hawaii and the defense counsel represents the accused. Before the special or general court-martial is detailed, the convening authority shall contact the office of the designated staff judge advocate for a list of personnel available for detail as law officer (for general court-martial only), trial counsel, and defense counsel. The convening authority shall appoint a law officer, trial counsel, defense counsel, and alternates as necessary from the list.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-46)

Haw. Code R. § 7-3-9 Sources of information

A commanding officer may receive information from many sources that an offense has allegedly been committed by a member under the command of the commanding officer. For example:

(1) The commanding officer may witness an alleged offense;

(2) Someone within the unit may report an alleged offense;

(3) A report of investigation may bring the alleged offense to the commanding officer's attention; or

(4) A higher headquarters may forward a report for action. When a superior commanding officer asks that an allegation be investigated and the disposition reported, the request shall not be construed or interpreted as a directive to take disciplinary action. This section shall be read in conjunction with section 7-3-10(c).

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: None)

Haw. Code R. § 7-3-10 Command responsibilities

(a) Regardless of how the commanding officer learns of an alleged offense, the commanding officer shall insure that the matter is promptly and adequately investigated so that the commanding officer will have sufficient information to make an intelligent and appropriate disposition of the allegation.

(b) Once the preliminary investigation is completed, the commanding officer shall decide to:

(1) Take no action;

(2) Take or recommend administrative action;

(3) Initiate or recommend nonjudicial punishment under section 124A-21, HRS; or

(4) Initiate court-martial action against the accused.

(c) No person may order or instruct any commanding officer or other person to initiate nonjudicial punishment or court-martial action under chapter 124A, HRS. A commanding officer's decision to take no action in a specific case shall not bar any higher commanding officer from taking action the commanding officer believes to be appropriate. Imposition and enforcement of non-judicial punishment shall bar later trial by court-martial for the same acts or ommissions except as provided in section 124A-21(e), HRS. A fine under section 124A-21, HRS constitutes "enforcement of nonjudicial punishment" only if it is paid when due.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS §§ 124A-52, 124A-53)

Chapter 4 COURTS-MARTIAL PREPARATION AND TRANSMITTAL OF CHARGE SHEET (AGHI FORM SJAG 2)

Haw. Code R. § 7-4-1 Charge sheet generally

(a) The charge sheet is the basic document for court-martial action. In preparing charges for trial by court-martial, the AGHI Form SJAG 2 (Charge Sheet) shall be used. This form may be prepared in an original only, which shall be forwarded to the convening authority. After all necessary information is entered by the convening authority, copies of the charge sheet shall be made for use by trial personnel.

(b) Preparation of the charge sheet is the most critical step prior to referral of the case for trial and shall not be accomplished without the assistance of a legal officer or judge advocate, unless none are available. Once the charges and specifications have been prepared and signed under oath, the charge sheet shall not be altered unless ordered by a judge advocate or legal officer.

(c) The exhibit entitled "Annex 10" dated 1 November 1984, located at the end of this subtitle is a sample charge sheet with instructions.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-2 Personal data

The first one-third of the first page of the charge sheet contains personal information concerning the accused. The accused's "grade" or "rank" is the accused's military title (for example, "PFC") and "pay grade" is the alphabetical and numerical designation (for example, "E-3"). "Home address" means the last known home address of the accused as shown on the records of the unit. The initial date of the accused's current service shall be the date of latest enlistment. All other military service shall be recorded in the section entitled "Prior Service".

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-3 Witnesses

The name and address (military unit or organization, if any, and home address) of all known prospective witnesses shall be listed on the charge sheet under "Data as to Witnesses". All witnesses shall be shown as witnesses for the "prosecution" unless the witness is one whom the accused has requested by name to give a statement or to be available to testify at the trial.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-4 Documents and objects

The commanding officer shall list all known documents or objects which are items of evidence. A clear identification of the item shall be given with the current location of the item. This section shall be subject to the conditions set forth in section 7-4-12.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-5 Data as to restraint

The charge sheet shall include data regarding an restraint imposed pursuant to section 7-5-1.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-6 Charges and specifications

(a) The most important part of the charge sheet is the page which contains the charges and specifications. The "charge" shall indicate the section of chapter 124A, HRS, which is alleged to have been violated. The "specification" under the charge shall state the facts and circumstances which constitute a violation of that section. There may be more than one specification under a single charge and more than one charge on a charge sheet. The charges and specifications shall be written so that they clearly advise the accused of the date, time, place, and circumstances of each alleged offense. The servicing judge advocate may be consulted prior to drafting the charges and specifications. Defective charges or specifications may result in dismissal of the case.

(b) The exhibit entitled "Annex 11" dated 1 November 1984, located at the end of this subtitle contains sample charges and specifications for some of the more common offenses. Particular care shall be exercised to insure that charges and specifications are legally and technically correct. Appendix 6 of the Manual for Courts-Martial, United States, contains sample charges and specifications for all offenses as well as instructions for their preparation.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-7 Preferral of charges

Any person subject to chapter 124A, HRS, may be an accuser. The signing of charges shall be done in the presence of a commissioned officer authorized to administer oaths under section 124A-162, HRS or any notary public of the State. All officers of the state military forces may administer oaths for the purpose of military administration and military justice when they are in a duty status. The accuser shall take the oath described in item twenty-three of the charge sheet.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-8 Reading charges to the accused

After the charges have been preferred, the commanding officer or a representative shall read the charges and specifications to the accused. The accused shall be advised of all rights through the use of AGHI Form SJAG 2a, a copy of which is set forth in the exhibit entitled "Annex 12", dated 1 November 1984, located at the end of this subtitle. The accused shall sign the form. The commanding officer or representative shall complete the certificate in item twenty-four of the charge sheet. If the accused is not immediately available, processing of the charge sheet may continue and the requirements of this section met at a later time.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-9 Nonjudicial punishment

The commanding officer shall complete items twenty-eight to thirty of the charge sheet as to all offenses charged in item twenty.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-10 Letter of transmittal

The letter of transmittal is the form used to forward the charge sheets and allied papers to the court-martial convening authority. This letter contains information about the accused and the commanding officer's specific recommendation for disposition of the charges. The commanding officer shall consider that charges against an accused shall be tried by the lowest court which has the power to adjudge an appropriate and adequate punishment. A sample letter of transmittal is contained in the exhibit entitled "Annex 13" dated 1 November 1984, located at the end of this subtitle.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-11 Inclosures

Certain allied papers shall be prepared and forwarded with the charge sheet; they are:

(1) Reports prepared by military police or investigators, if available;

(2) Copies of all available witness statements, sworn or unsworn, and summaries of expected testimony of witnesses whose statements are not available;

(3) Available records of all previous court-martial actions known to have been taken against the accused under chapter 124A, HRS, and the Uniform Code of Military Justice;

(4) Copies of documentary evidence and descriptions of physical evidence.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-12 Original documents and physical evidence

In order to safeguard documentary evidence, originals of documents shall not be forwarded with the charge sheet nor shall physical evidence be forwarded. Information as to the location of original documentary and physical evidence shall be shown on the charge sheet in the section entitled "Documents and Objects".

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-13 Time limits

The prompt disposition of charges is essential to an efficient system of military justice. The following are recommendations for avoiding delays in the processing of court-martial charges:

(1) Investigate an incident as soon as it becomes known;

(2) Do not allow a case to remain in the unit because of pressure of other duties;

(3) Hand carry or mail by certified mail all court-martial files to higher headquarters;

(4) At any stage of the proceeding, the commanding officer may consult a staff judge advocate for advice if the commanding officer has any questions or doubts.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-14 Action upon receipt or initiation of charges by convening authority

Upon receipt of a completed charge sheet and allied papers, or upon initiating charges, the convening authority shall complete and sign the receipt of charges, item twenty-five of the charge sheet. The convening authority shall then decide whether the charges warrant trial by court-martial. If the convening authority concludes that trial by special or general court-martial is appropriate, and the convening authority is not authorized to convene those courts, the charge sheet and allied papers shall be forwarded to the next higher convening authority with recommendations as to disposition. Upon receipt of the charges, the special or general court-martial convening authority shall proceed in accordance with chapter 124A, HRS, this subtitle, and the Manual for Courts-Martial, United States, it existed on 1 July 1988.

History

• [Eff: FEB 11 1985; am APR 27 1989] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-15 Action when charges are to be referred for trial

(a) The convening authority shall contact the state judge advocate for the case number to be inserted in item thirty-one. Case numbers shall be assigned in numerical sequence, using the year and consecutive numbering (for example, 1983-1, 1983-2, 1983-3, etc.) and start anew each year.

(b) The convening authority shall then contact the office of the appropriate judge advocate to obtain a law officer, trial and defense counsel, as required, to conduct the court-martial.

(c) Upon selection of any law officer, trial counsel and defense counsel (military or civilian), the convening authority shall publish orders appointing the military personnel to serve in their respective capacities. A sample order is contained in the exhibit entitled "Annex 14" dated 1 November 1984, located at the end of this subtitle.

(d) The convening authority shall then complete item twenty-six. This action refers the charges to the previously appointed court-martial for trial.

(e) The convening authority shall notify the accused of the name, address and phone numbers of the assigned military defense counsel.

(f) If the accused waives right to military counsel, the accused shall do so in writing. The convening authority shall then notify the office of the appropriate staff judge advocate in order to release the military defense counsel for other assignment.

(g) Block twenty-seven shall not be completed in the case of a summary court-martial. In all other cases it shall be accom-plished and completed by the trial counsel.

(h) The "Record of Trial by Summary Court-Martial" section of the charge sheet shall be completed by the summary court officer.

(i) The remainder of the charge sheet shall be completed after the trial and review are completed.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Haw. Code R. § 7-4-16 Action when charges are not to be referred for trial

(a) If the convening authority decides not to refer the case for trial by court-martial, the convening authority shall return the charge sheet and allied papers to the initiating commanding officer, who then, subject to subsection (b), may:

(1) Take no further action with regard to the case;

(2) Take or recommend administrative action;

(3) Initiate or recommend nonjudicial punishment; or

(4) Take any action not inconsistent with the directions of the higher convening authority.

(b) If the returned court-martial charges were initiated following demand by the member for court-martial in lieu of nonjudicial punishment, nonjudicial punishment action shall not be re-initiated.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-51)

Chapter 5 PRE-TRIAL CONFINEMENT AND OTHER PRE-TRIAL ACTIONS

Haw. Code R. § 7-5-1 Apprehension; pre-trial confinement

(a) Any commanding officer may order military police of the state military force concerned to apprehend any member of the commanding officer's command who the commanding officer has probable cause to believe has committed an offense under chapter 124A, HRS, or chapter 7-9.

(b) Upon apprehension of the suspected offender, the person executing the apprehension shall deliver the suspected offender to the commanding officer who ordered the apprehension.

(c) The commanding officer shall then, determine the appropriate level of restraint, if any. Restraint includes but shall not be limited to:

(1) Restriction to a specific area;

(2) Arrest in quarters; or

(3) Pre-trial confinement.

When apprehended only for charges normally tried by a summary court-martial the suspected offender shall not ordinarily be placed in pre-trial confinement.

(d) Where a suspected offender has been apprehended only for an offense normally tried by a summary court-martial, the suspect shall be charged not later than forty-eight hours after the imposition of any pre-trial restraint.

(e) The commanding officer shall take all steps required under section 124A-14 to insure that any suspected offender is not subject to unnecessary pre-trial restraint.

(f) Pre-trial confinement shall be in facilities designated by section 7-6-7.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-11, 124A-171) (Imp: HRS § 124A-13, 124A-14)

Haw. Code R. § 7-5-2 Convening authority's role in setting up the trial

(a) The convening authority shall provide suitable space for the conduct of the court-martial and provide such administrative support as may be required.

(b) The convening authority shall notify the accused and, if the accused is represented, the defense counsel of the time, date, and place of trial. The exhibit entitled "Annex 18" dated 1 November 1984, located at the end of this subtitle contains a sample "Notice of Trial Setting". The notice shall be delivered in person or by certified mail, return receipt requested delivered to addressee only. If mailed, the notice shall be sent in a postage and fees paid envelope and deposited in an office of the United States Postal Service. Delivery to the accused, mailed to the latest available address as shown on the records of the units, shall be presumed seven days following date of deposit.

(c) Not less than twenty calendar days (or such shorter time as the convening authority may establish) prior to the court-martial, the trial counsel and defense counsel shall provide the convening authority with a list of military and civilian personnel each desires to call as witnesses. The list shall include the name, home address and phone number, business address and phone number, and military unit (where applicable).

(d) The convening authority through trial counsel shall take the necessary action to attempt to insure that all military personnel are available to participate in the proceedings. The summary court officer or president of the court-martial may issue subpoenas and letters of explanation to secure the presence of persons not subject to military orders. Examples of subpoenas and letters are shown in the exhibits entitled "Annex 15", "Annex 16", and "Annex 17", all dated 1 November 1984, located at the end of this subtitle.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-71, 124A-72)

Haw. Code R. § 7-5-3 Action if accused objects to trial by summary court-martial

The accused has no right to object to a summary court-martial if the accused has been permitted and has elected to refuse nonjudicial punishment; provided in all other cases, if the accused does not consent to trial by summary court-martial, the convening authority may:

(1) Dismiss the charges;

(2) Convene a special or general court-martial, if the convening authority is a proper convening authority;

(3) Refer the case through military channels to a proper convening authority; or

(4) Take any other action not prohibited by law.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-35)

Chapter 6 CONVENING AUTHORITY'S POST-TRIAL ACTIONS

Haw. Code R. § 7-6-1 Deferral of sentences to confinement

All sentences to confinement shall be executed on the date the sentence is adjudged unless the convicted person requests in writing deferral of any sentence to confinement and the convening authority approves the request in writing. If deferral is granted, the sentence to confinement shall begin to run on the date of final action by the convening authority on any sentence of confinement.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-83, 124A-171) (Imp: HRS § 124A-83)

Haw. Code R. § 7-6-2 Convening authority's action

(a) The record of trial and review shall be forwarded to the convening authority for action.

(b) The convening authority may approve all or part of the adjudged sentence or disapprove the findings and sentence; provided in general courts-martial, the convening authority shall refer the record to the designated staff judge advocate pursuant to section 124A-93, HRS.

(c) If the convening authority approves any part of the adjudged sentence which has not been executed, the convening authority may:

(1) Order the approved sentence into execution; or

(2) Suspend execution of the sentence as provided in section 7-6-3.

(d) If the convening authority disapproves the findings and sentence of a court-martial, the convening authority may order a rehearing, except where there is a lack of evidence of guilt in the record to support the findings. When the convening authority disapproves the findings and sentence, the reasons for disapproval shall be stated. If the convening authority disapproves the findings and sentence and does not order a rehearing, the charges shall be dismissed.

(e) If a member is sentenced to confinement as a result of two or more courts-martial, the convening authority may order the periods of confinement into execution consecutively or concurrently as the convening authority deems appropriate. "Consecutively" means that the punishment starts after the other has been served. "Concurrently" means that the punishment shall be served at the same time. Fines shall be due in the aggregate sum imposed and approved. Section 7-6-8 shall also apply.

(f) Upon ordering the punishment into execution, the convening authority shall complete that portion of the charge sheet designated "To Be Filled in By Convening Authority".

(g) The convening authority shall cause the remaining portion of the charge sheet to be completed by the appropriate officer.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS §§ 124A-91, 124A-93, 124A-94, 124A-95, 124A-96, 124A-97)

Haw. Code R. § 7-6-3 Suspension of sentences; generally

At any time prior to adjournment of the court-martial, an accused may file with the court a written application of suspension of sentence, AGHI Form SJAG 3, an example of which is contained in the exhibit entitled "Annex 19" dated 1 November 1984, located at the end of this subtitle. The presiding officer of any court-martial shall inform the accused of the right to file the application and give the accused an opportunity to do so.

The form shall be filed in all cases in which the accused is seeking suspension of sentence, whether or not a pre-trial agreement with the convening authority has been entered into.

The convening authority may suspend the execution of any approved sentence whether or not the application has been filed. If the convening authority suspends the sentence, the permissible terms and conditions of the suspension shall include those stated on the application for suspension of sentence.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-91)

Haw. Code R. § 7-6-4 Partial suspension of sentence

The convening authority may suspend any part or amount of any sentence which has not previously been paid or served. For example, an accused against whom a court-martial sentence often days confinement has been adjudged may be ordered confined for three days and the remaining seven days suspended; or, an accused against whom a court-martial sentence of a $25 fine has been adjudged may be ordered to pay $10 and payment of the remaining $15 suspended.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-91)

Haw. Code R. § 7-6-5 Length of suspension term

A court-martial sentence may be suspended by the convening authority for a reasonable period of time. The period of suspension shall not exceed twelve months from the date of the convening authority's action, unless a longer period of suspension is required, in the sole and unreviewable discretion of the convening authority, to maintain good order and discipline. In no event shall the period of suspension extend beyond the expiration of the accused's present term of service, unless the accused consents thereto in writing.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-61, 124A-171) (Imp: HRS § 124A-91)

Haw. Code R. § 7-6-7 Execution of confinement

(a) Sentences of confinement adjudged by military courts may be executed only in military guardhouses under the control of the state military forces or in civil jails designated for that purpose by the adjutant general or the state judge advocate. Trial counsel shall seek the designation in advance of any court-martial if confinement in a place other than as provided in subsection (b) is contemplated. The designation may be made orally and confirmed in writing.

(b) Unless specifically otherwise designated, the place of confinement shall be the state correctional facility within the county where the court-martial is held that is usually used to incarcerate offenders who are found guilty of criminal offenses punishable by a maximum term of imprisonment for one year or less.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-15, 124A-84, 124A-171) (Imp: HRS § 124A-15, 124A-84)

Haw. Code R. § 7-6-8 Mittimus when issued by a presiding officer

Unless the sentence of confinement has been deferred, as provided in section 7-6-1, the presiding officer of a court-martial shall issue a mittimus (order to confinement), as set forth in AGHI Form SJAG 4, following the imposition of a sentence to confinement. An example of AGHI Form SJAG 4 is contained in the exhibit entitled "Annex 20" dated 1 November 1984, located at the end of this subtitle.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-84)

Haw. Code R. § 7-6-9 Mittimus when issued by convening authority

(a) If the convening authority approves any portion of a court-martial sentence that includes confinement and does not suspend that confinement, the convening authority shall issue the mittimus if confinement has been deferred as provided in section 7-6-1. The convening authority shall have the sole discretion to allow the convicted person to serve a sentence to confinement on any basis other than "straight-time" (for example, by allowing service on weekends or participation in a work-release program). If the convening authority desires to authorize other than "straight-time" service of the sentence, the convening authority shall make the appropriate arrangements with the confinement authorities prior to issuing the mittimus. Any such arrangements shall be set out in that portion of the mittimus following the words "Convening Authority's Special Instructions to Jailer".

(b) Upon being informed of the convening authority's imposition of confinement, the defense counsel shall advise the convicted person to voluntarily surrender to the authority designated in the mittimus to begin service of the sentence of confinement. If the convicted person fails to surrender voluntarily at the time and place designated in the mittimus, the convening authority may order civilian law enforcement authorities or the military police of the state military force concerned to apprehend the convicted person and deliver the convicted person to the place of confinement designated in the mittimus.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-84)

Haw. Code R. § 7-6-10 Disposition of fines

When a fine is paid, the person receiving the money shall cause the money to be paid within thirty days of receipt to the director of finance through a letter of transmittal to the credit of the state general fund. The sample letter of transmittal in Annex 7 shall be suitably modified.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-168)

Haw. Code R. § 7-6-11 Publication of results

Upon completion of the review, the convening authority shall publish orders setting forth the results of the trial. The exhibit entitled "Annex 21" dated 1 November 1984, located at the end of this subtitle, contains a sample "Promulgating Order". Appropriate United States military service regulations may be consulted to adapt this sample to fit each case.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-104)

Haw. Code R. § 7-6-12 Distribution and filing of charge sheet

When the convening authority has completed all actions under section 7-6-2, the original charge sheet with all exhibits attached shall be filed in the military personnel record of the accused as the record of trial. A record of trial of a summary court shall be authenticated by the signature of the summary court officer. The convening authority shall forward a complete copy of the record of trial to the accused and each counsel for the accused, and to the office of the appropriate staff judge advocate.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-79) (Imp: HRS § 124A-79)

Haw. Code R. § 7-6-13 Vacating suspensions

(a) If at any time during the period of suspension the convening authority receives information that the probationer may have violated any of the terms of that suspension, the convening authority, after consultation with the appropriate judge advocate, may begin procedures to consider whether the suspension shall be vacated.

(b) The convening authority may initiate the procedure by written notification to the probationer, delivered in person or by certified mail, return receipt requested, delivery restricted to addressee only, in a postage and fees paid envelope deposited in an office of the United States Postal Service, addressed to the probationer at the latest available address shown on the records of the unit. If the probationer refuses to accept personal delivery, or the notice by mail is returned undelivered, the convening authority may proceed summarily. Notice sent by mail as provided in this subsection shall be presumed to be personally delivered to the probationer seven days following date of deposit. The form notification shown in the exhibit entitled "Annex 22" dated 1 November 1984, located at the end of this subtitle may be preprinted on unit stationery by convening authorities, or may be tailored to fit each case.

(c) If the probationer requests additional time to consult with counsel prior to responding, the convening authority may grant a reasonable amount of additional time so that the probationer may have the opportunity to prepare and present a meaningful response to the allegations of violation of terms of suspension.

(d) The convening authority may utilize any administrative procedure to insure that all facts of the matter are available prior to making the decision as to whether to vacate the suspension. In addition, the convening authority may appoint a court of inquiry under section 124A-161, HRS, or may detail a law officer to conduct a hearing into the matter. In any case where a special court-martial sentence, as approved, includes a bad conduct discharge, or of any general court-martial sentence, the special court-martial convening authority of the probationer shall hold a hearing on the alleged violation of probation, The record of hearing and the recommendation of the special court-martial convening authority shall be sent to the governor in cases involving general court-martial sentence and to the commanding officer of the force of the military force of which the probationer is a member in case of a special court-martial sentence which includes a bad conduct discharge.

(e) The governor, the commanding officer of the force of the state military force of which the probationer is a member, or the convening authority, as the case may be, shall determine what disposition to make of the alleged violation of suspension. Any of the following actions may be taken:

(1) Continue the accused on suspension;

(2) Vacate the suspension, remit any part or amount of the unexecuted part of the sentence, and order the remainder of the sentence into execution; or

(3) Vacate the suspension and order the unexecuted portion of the sentence into execution.

In addition, the authority considering vacation of a suspension may initiate action for court-martial charges or nonjudicial punishment for the act constituting the alleged violation of suspension, if the act also constitutes a violation of chapter 124A, HRS.

(f) If the authority considering vacation of a suspension vacates the suspension, an appropriate order shall be published. An example of an order is contained in the exhibit entitled "Annex 23" dated 1 November 1984, located at the end of this subtitle. If confinement is ordered executed, a mittimus shall also be issued.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-100)

Chapter 7 PROCEDURES FOR APPEAL

Haw. Code R. § 7-7-1 Accused's appeal to the supreme court of the State

(a) Procedures for appealing the decision of any court-martial to the supreme court shall be as provided in section 124A-105, HRS, and this chapter.

(b) The contents, form, and other requisites of an accused's notice of appeal to the supreme court of the State shall be as established by the Hawaii rules of penal procedure. The accused shall serve the convening authority, reviewing staff judge advocate, law officer, trial counsel, and the state judge advocate general each a copy of the notice of appeal within the time prescribed by the Hawaii rules of penal procedure.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-105)

Haw. Code R. § 7-7-2 Record on appeal

(a) Upon filing of the accused's notice of appeal under Rule 37, Hawaii rules of penal procedure, the trial counsel, including any substitute trial counsel appointed under section 124A-46, HRS shall prepare a record of the proceedings for use in the appeal. Trial counsel shall coordinate with the convening authority immediately upon being detailed to serve, to insure that all items which may later be required for the record are preserved and kept readily available.

(b) The record of a special or general court-martial shall contain all matters brought before the court and shall be authenticated in substantially the same manner as are like courts-martial in the federal military services, subject to section 124A-79, HRS.

(c) Prior to presenting the proposed record for authentication pursuant to 124A-79, HRS, the trial counsel shall afford the defense counsel a reasonable opportunity to review the proposed record and make informal requests for changes thereto. If agreement cannot be reached as to any of the requested changes, the defense counsel shall have a reasonable opportunity to prepare written objections to the proposed record, which objections shall be forwarded with the proposed record by the trial counsel. The authenticating authority shall rule in writing on all the objections and amend the proposed record to conform to the rulings. The objections and rulings shall be appended to the record as an added exhibit. The record as thus constituted shall be authenticated by the signature of the authenticating authority. The authenticated record shall then be forwarded to the convening authority and a copy furnished to the defense counsel.

(d) Upon receipt of the authenticated record, the convening authority, with the advice and counsel of the reviewing staff judge advocate, shall take action as provided in subsections (e) to (h).

(e) If the authenticating authority has granted all the relief requested by defense counsel regarding objections to the record, and if defense counsel has at that time presented no additional objections, the convening authority shall approve the authenticated record and return the record to the trial counsel for distribution.

(f) If the authenticating authority did not grant all relief requested by defense counsel as to objections to the record, the convening authority shall consider the refusal to grant relief, and may grant additional relief, if the convening authority considers that action to be appropriate and in the interests of justice. The convening authority may only grant or deny additional relief and shall not overturn any previous grant of relief. The rulings of the convening authority shall be made in writing and the record appropriately amended. These rulings shall be appended to the record as another added exhibit, and the record as thus constituted shall be approved by the signature of the convening authority.;

(g) If, prior to approval of the record, the defense counsel presents to the convening authority any objections to the record which have not been ruled on by the authenticating authority, the convening authority may determine the objections, or may refer the objections to the authenticating authority for action thereon in writing.

(1) As to objections which the convening authority does not refer to the authenticating authority, the convening authority shall act as if the objections had been presented to the authenticating authority and all relief denied.

(2) As to objections which are referred to the authenticating authority, the convening authority, upon receipt of the authenticating authority's action thereon, shall proceed as set forth in subsections (e) or (f).

(h) Failure of the convening authority to rule on any objection constitutes the denial of further relief thereon.

(i) After action by the convening authority, the trial counsel shall distribute the approved record as follows:

(1) The original and the required number of copies to the clerk of the supreme court of the State of Hawaii; and

(2) One copy each to defense counsel, law officer, convening authority, designated staff judge advocate and the state judge advocate.

(j) Time limits may be imposed by rule of the service concerned, or if none, by the authenticating authority and convening authority to the end that the record on appeal shall be docketted with the supreme court as required by rules adopted by that court.

History

• [Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-105)

Chapter 8 GENERAL ADMINISTRATIVE PROCEDURES AND REPORTS

Haw. Code R. § 7-8-1 Forms of process

The trial counsel, defense counsel, courts-martial, courts of inquiry, and boards of investigation shall have the opportunity to obtain witnesses and other evidence. Process issued to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to those issued by the courts of Hawaii having criminal jurisdiction and shall run to any part of the State. Sample forms of process are listed in the exhibits entitled "Annex 15", "Annex 16", and "Annex 17", all dated 1 November 1984, located at the end of this subtitle. Part II, Chapter 7, Manual for Courts-Martial, United States, 1984, as it existed on 1 July 1988, shall be used as a procedural guide: provided chapter 124A, HRS, and this subtitle shall govern in the event of conflict. Sections 124A-71 to 124A-74, 124A-161, 124A-166, and 124A-167, HRS, shall control in matters regarding witnesses, depositions, contempt, and expenses.

History

• [Eff: FEB 11 1985; am APR 27 1989] (Auth: HRS §§ 124A-71, 124A-171) (Imp: §§ 124A-71, 124A-74, 124A-167)

Haw. Code R. § 7-8-2 Witnesses

Subpoenas or other process issued to witnesses shall be served as provided by section 124A-71, HRS. The process shall be accompanied by a letter explaining the penalty for failure to obey the process as outlined in section 124A-72, HRS. The letter shall also advise the witness of entitlement to expenses and the procedure for collecting payment. Witnesses shall be compensated in the same manner as witnesses in civilian criminal trials are compensated in the circuit courts of the State. Examples of the letter are contained in the exhibits entitled "Annex 15", "Annex 16", and "Annex 17", all dated 1 November 1984, located at the end of this subtitle.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-71, 124A-171) (Imp: HRS §§ 124A-71, 124A-72)

Haw. Code R. § 7-8-3 Court reporters and interpreters

Court reporters and interpreters may be employed when required by chapter 124A, HRS, or when directed by the adjutant general. A court reporter shall not be provided in a nonjudicial punishment proceeding or a summary court-martial. A defendant may provide a court reporter in a nonjudicial punishment or summary court-martial proceeding at the defendant's own expense.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-47, 124A-171) (Imp: HRS §§ 124A-21, 124A-47, 124A-161)

Haw. Code R. § 7-8-4 Lesser included offenses

Lesser included offenses shall be as provided in the exhibit entitled "Annex 24, Table of Commonly Included Offenses", dated 1 July 1988, to the extent that punitive sections found in chapter 124A, HRS, and chapter 7-9, correspond to articles of the Uniform Code of Military Justice. The lesser included offense exits where a section and article are in agreement in the two codes.

History

• [Eff: FEB 11 1985; am APR 27 1989] (Auth: HRS § 124A-171) (Imp: None)

Chapter 9 GENERAL ARTICLE

Haw. Code R. § 7-9-1 General article; generally

(a) Section 124A-155, HRS, makes punishable all acts not specifically prescribed in any other section of chapter 124A, HRS, when they amount to the disorders or neglects to the prejudice of good order and discipline in the state military forces as specified and defined in this chapter. If conduct of this nature is specifically made punishable by another section of chapter 124A, HRS, it shall be charged as a violation of that section. If the conduct is not specifically made punishable by another section of chapter 124 A, HRS, it shall be charged as a violation of section 124A-155, HRS, and this chapter. The specifications alleging a violation of section 124A-155, HRS, need not expressly allege that the conduct was a disorder or neglect to the prejudice of good order and discipline in the state military forces. Under a specification alleging a violation of section 124A-155, HRS, a finding of guilty may properly be returned if the court-martial is convinced beyond a reasonable doubt that the acts of the accused constituted a disorder or neglect to the prejudice of good order and discipline in the state military forces.

(b) The disorders and neglects punishable under section 124A-155, HRS, include those acts or omissions to the prejudice and good order and discipline not specifically mentioned in other sections. "To the prejudice of good order and discipline" include only acts directly prejudicial to good order and discipline and not acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the state military forces could be regarded as prejudicial in some indirect or remote sense. Section 124A-155, HRS, shall not apply to those distant effects, and shall be confined to cases in which the prejudice is reasonably direct and palpable.

(c) Instances of prejudicial disorder and neglects in the case of officers may include:

(1) Rendering the person's self unfit for duty by excessive use of intoxicants or drugs;

(2) Drunkenness; or

(3) Allowing a member of the officer's command to go on duty knowing the member to be drunk.

(d) Instances of prejudicial disorders and neglects in the case of enlisted persons may include:

(1) Appearing in improper uniform;

(2) Wrongfully abusive use of military vehicles;

(3) Careless discharge of firearms; or

(4) Impersonating an officer.

(e) A breach of a custom of the service may result in a violation of section 124A-155, HRS. In its legal sense the word "custom" imports something more than a method of procedure or a mode of conduct or behavior which is merely of frequent or unusual occurrence. Custom arises out of long established practices which by common consent have attained the force of law in the military or other community affected by them. There can be no such thing as a custom that is contrary to existing law or rule. A custom which has not been adopted by existing statute or rule ceases to exist when its observance has been long abandoned. Many customs of the service are now set forth in regulations of the various armed forces. Violations of these customs shall be charged under section 124A-127, HRS.

(f) The proof required for conviction of an offense under section 124A-155, HRS, depend upon the nature of the misconduct charged. One element of proof common to every case tried under section 124A-155, HRS, is that the conduct of the accused, under the circumstances, was to the prejudice of good order and discipline in the state military forces. This element is common to all of the offenses charged under section 124A-155, HRS, and shall be included in instructions as to the elements of these offenses, in addition to their specific elements.

(g) In addition to the acts or omissions proscribed in this chapter, a person subject to chapter 124A, HRS shall be punished as a court-martial direct for acts of omissions which are, under the circumstances, prejudicial of good order and discipline in the state military forces.

(h) The conduct specified in this chapter constitute a violation of section 124A-155, HRS, if it is under the circumstances prejudicial of good order and discipline in the armed forces and shall be punishable as a court-martial may direct. This listing of specific acts of conduct is not exclusive and is not intznded to limit the application of section 124A-155, HRS, to other disorders and neglects to the prejudice of good order and discipline in the state military forces. The failure to follow a model specification shall not constitute grounds for dismissal of a charge.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-2 Indecent assault

(a) A model specification of the offense of indecent assault shall be as follows:

"In that_____________________did, (at) (on board)_____________________on or about _____________________19__, commit an indecent assault upon_____________________, with intent to gratify (his) (her) (lust) (sexual desires)."

(b) The elements of the offense of indecent assault shall be as follows:

(1) That, at the time and place alleged the accused attempted to do, offered to do, or did bodily harm to another;

(2) That the accused did so in the alleged manner;

(3) That the acts were done with unlawful force or violence;

(4) That the alleged victim was a human being and not the spouse of the accused;

(5) That the act or acts of the accused amounted to taking of indecent, lewd, or lascivious liberties with the person of the alleged victim;

(6) That the accused's acts were done without the consent of the alleged victim and against the victim's will;

(7) That the acts were done with the intent to gratify the lust or sexual desires of the accused;

(8) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section:

(1) An "attempt to do bodily harm" means an overt act which amounts to more than mere preparation and is done with apparent present ability to do bodily harm to another. Physical injury or offensive touching is not required.

(2) An "offer to do bodily harm" means an intentional act or failure to act which foreseeably causes another to reasonably believe that force will immediately be applied to his or her person. There shall be an apparent present ability to bring about bodily harm. Physical injury or offensive touching is not required.

(3) An act of force or violence is unlawful if done without legal justification or excuse and without the lawful consent of the victim.

(4) An assault in which bodily harm is inflicted is a battery. A "battery" is an unlawful and intentional application of force or violence to another. The act must be done without legal justification or excuse and without the lawful consent of the victim. "Bodily harm" means any physical injury to or offensive touching of another person, however slight.

(5) An indecent, lewd, and lascivious act means that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene and repugnant to common propriety, but tends to excite, lust and deprave the morals with respect to sexual relations.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-3 Bribery and graft; asking, accepting, or receiving

(a) A model specification of the offense of bribery and graft (asking, accepting, or receiving) shall be as follows:

"In that_____________________, being at the time (a contracting officer for _____________________) (the personnel officer of_____________________) (_____________________), did, (at) (on board), on or about_____________________19__, wrongfully and unlawfully (ask) (accept) (receive) from_____________________(a contracting company engaged in_____________________) (_____________________), [with intent to have the accused's (decision) (action) influenced with respect to] [as compensation for (in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by the accused the said _____________________in relation to] an official matter in which the State of Hawaii was and is interested, to wit: (the purchasing of military supplies from_____________________) (the transfer of_____________________to duty with_____________________) (___________________________)."

(b) The elements of the offense of bribery and graft (asking, accepting, or receiving shall be as follows:

(1) That, at the time and place alleged, the accused wrongfully and unlawfully asked, accepted or received the sum of money or other property, of any value from the person or organization alleged;

(2) That, at that time, the accused occupied an official position or had official duties as alleged;

(3) That the accused asked, accepted or received this sum of money or other property:

(A) With intent to have the accused's decision or action influenced with respect to; or

(B) As compensation for or in recognition of services rendered, to be rendered or rendered and to be rendered by him or her in relation to, the matter alleged;

(4) That the matter alleged was an official matter in which the State of Hawaii was and is interested; and

(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-4 Bribery and graft promising, offering, or giving

(a) A model specification of the offense of bribery and graft (promising, offering, or giving), shall be as follows:

"In that_____________________did, (at) (on board)_____________________, on or about _____________________19__, wrongfully and unlawfully (promise) (offer) (give) to _____________________(his/her commanding officer) (the claims officer of _____________________) (_____________________), (the sum of $_____________________) (_____________________, of a value of (about) $_____________________) (_____________________) with the intent to influence the (decision) (action) of the said_____________________with respect to] [(as compensation for) (in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by the said _____________________in relation to] an official matter in which the State of Hawaii was and is interested, to wit: (the granting of leave to_____________________) (the processing of a claim against the State of Hawaii in favor of_____________________) (_____________________)."

(b) Elements of the offense of bribery and graft (promising, offering, or giving), shall be as follows:

(1) That, at the time and place alleged, the accused wrongfully and unlawfully promised, offered, or gave a sum of money or other property of any value to (state the person alleged);

(2) That, at that time, the person alleged occupied an official position or had official duties;

(3) That this sum of money or property was promised, offered, or given:

(A) With the intent to influence the decision, action of the person alleged with respect to, or

(B) As compensation for or in recognition of services rendered, to be rendered, or rendered and to be rendered by the person alleged in relation to the manner alleged;

(4) That the matter alleged was an official matter in which the State of Hawaii was and is interested; and

(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-5 Correctional custody, escape from

(a) A model specification for the offense of correctional custody, escape from, shall be as follows:

"In that_____________________, while duly undergoing the punishment of correctional custody, did (at) (on board)_____________________, on or about_____________________, 19__, escape from correctional custody."

(b) The elements of the offense of correctional custody, escape from, shall be as follows:

(1) That the accused was duly placed in correctional custody at the place alleged;

(2) That, while in the correctional custody, the accused was under physical restraint imposed;

(3) That the accused knew of this correctional custody and the limits of the physical restraint imposed;

(4) That, at the time and place alleged the accused freed the accused's self from the physical restraint of this correctional custody before the accused had been released by proper authority; and

(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section, "correctional custody" means physical restraint of a person during duty or nonduty hours, or both imposed as a non-judicial punishment under section 124A-21.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-6 Correctional custody; breach of restraint during

(a) A model specification for the offense of correctional custody (breach of restraint during) Shall be as follows:

"In that_____________________, while duly undergoing the punishment of correctional custody, did, (at) (on board)_____________________on or about_____________________19__, breach the restraint imposed thereunder by_____________________."

(b) The elements of the offense of correctional custody (breach of restraint during) shall be as follows:

(1) That the accused was duly placed in correctional custody at the place of correctional custody;

(2) That, while in correctional custody, the accused was duly restrained by proper authority to the limits alleged;

(3) That the accused knew of this correctional custody and the limits of the restraint;

(4) That, at the time and place alleged, the accused went beyond the limits of the restraint before the accused had been released from the correctional custody (relieved of the restraint) by the proper authority;

(5) That the accused did so by the manner alleged;

(6) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section, "correctional custody" means the physical restraint of a person during duty or nonduty hours, (or both), imposed as a non-judicial punishment under section 124A-21, HRS.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-7 Disorderly, drunkenness, in command, quarters, etc., under service discrediting circumstances

(a) A model specification for the offense of disorderly, drunkenness, in command, quarters, etc., under service discrediting circumstances shall be as follows:

"In that_____________________was, (at) (on board)_____________________, on or about _____________________19__, (drunk) (disorderly) (drunk and disorderly) [in (command quarters) (station) (camp) (_____________________)] [on board ship] [in uniform in a public place, to wit:_____________________] [_____________________]."

(b) The elements of the offense of disorderly, drunkenness, in command, quarters, etc., under service discrediting circumstances shall be as follows:

(1) That, at the time and place alleged, the accused was drunk, disorderly or both:

(A) In command quarters, station, camp; or other military facility;

(B) On board ship, or aircraft; or,

(C) In uniform in a public place or in a public place under military control;

(2) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section:

"Drunkenness" means any intoxication which is sufficient sensibly to impair the rational and full exercise of the mental or physical faculties;

"Disorderly" means any disturbance of a quarrelsome, combative, or turbulent nature;

"Public place" means a place frequented by the public, or some of the public, or as a place open to public view. It does not have to be a place open to everyone.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-8 Disorderly, drunkenness; incapacitating oneself for performance of duties through prior indulgence in intoxicating liquors

(a) A model specification of the offense of disorderly, drunkenness; incapacitating oneself for performance of duties through prior indulgence in intoxicating liquors shall be as follows:

"In that _____________________ was, (at) (on board) _____________________, on or about _____________________ 19__, as a result of the previous indulgence in intoxicating liquor (drugs), incapacitated for the proper performance of his/her duties, to wit: _____________________."

(b) The elements of the offense of disorderly, drunkenness; incapacitating oneself for performance of duties through prior indulgence in intoxicating liquors shall be as follows:

(1) That the accused had certain duties to perform, as alleged;

(2) That, at the time and place alleged, the accused was incapacitated for the proper performance of those duties;

(3) That the incapacitation was the result of previous indulgence in intoxicating liquor or drugs, or both;

(4) That the accused knew or should reasonably have known prior to the time of the accused's incapacitation that the accused had those duties to perform; and

(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-9 Drugs; wrongful possession

(a) A model specification of the offense of drugs, wrongful possession shall be as follows:

"In that _____________________ did, (at) (on board) _____________________, on or about _____________________ 19__, wrongfully have in his/her possession _____________________ ounces more or less, of a (detrimental drug) (harmful drug) (a dangerous drug) to wit: _____________________."

(b) The elements of the offense of drugs wrongful possession of shall be as follows:

(1) That, at the time and place alleged, the accused had in the accused's possession any amount of a detrimental drug, a harmful drug, or a dangerous drug as defined by chapter 712, HRS;

(2) That the possession by the accused was wrongful; and

(3) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-10 Drugs; wrongful use or distribution

(a) A model specification of the offense of drugs; wrongful use or distribution shall be as follows:

"In that _____________________ did, (at) (on board) _____________________, on or about _____________________ 19__, wrongfully (use) (transfer) (sell) a (detrimental) (harmful drug) (dangerous drug), to wit: _____________________."

(b) The elements of the offense of drugs; wrongful use, or distribution, shall be as follows:

(1) That, at the time and place alleged, the accused used or distributed a detrimental drug, a harmful drug, or dangerous drug as defined in chapter 712, HRS;

(2) That the use or distribution by the accused was wrongful; and

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section, the term "to distribute" shall be as defined in section 712-1240, HRS.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-11 Drugs; wrongful introduction into military unit, etc

(a) A model specification of the offense of drugs; wrongful introduction into military unit, etc. shall be as follows:

"In that _____________________ did, (at) (on board) _____________________, on or about _____________________ 19__, wrongfully introduce _____________________ ounces, more or less, of a (detrimental drug) (harmful drug) (dangerous drug) into a military (unit) (base) (station) (post) (ship) (aircraft) (_____________________), to wit: _____________________, for the purpose of (possession) (use) (distribution) (_____________________)."

(b) The elements of the offense of drugs; wrongful introduction into military unit, etc. shall be as follows:

(1) That, at the time and place alleged, the accused introduced any amount of a detrimental drug, a harmful drug, or dangerous drug as defined in chapter 712, HRS;

(2) That the introduction by the accused was for the purpose of possession, use, distribution; or other illegal purpose.

(3) That the introduction was wrongful; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section, the term "introduce" means to bring into a military unit, base, station, post, ship, aircraft, or any other area, operation, or activity under military control.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-12 Wrongful making, altering, counterfeiting, tampering with a pass

(a) A model specification for the offense of wrongful making, altering, counterfeiting, tampering with a pass shall be as follows:

"In that _____________________ did, (at) (on board) _____________________, on or about _____________________ 19__, wrongfully and falsely (make) (forge) (alter by _____________________) (counterfeit) (tamper with by _____________________) (a certain instrument purporting to be) (a) (an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (identification card) (_____________________) in word and figure as follows: _____________________, [he/she then said _____________________, then well knowing the same to be (false) (unauthorized) (_____________________)."

(b) The elements of the offense of wrongful making, altering, counterfeiting, tampering with a pass shall be as follows:

(1) That, at the time and place alleged, the accused wrongfully and falsely made, altered, counterfeited, or tampered with a certain instrument purporting to be official permit, discharge certificate, identification card, or other official military document; and

(2) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-13 Wrongful sale, gift, loan, etc., of false or unauthorized pass

(a) A model specification for the offense of wrongful sale, gift, loan, etc., of false or unauthorized pass shall be as follows:

"In that _____________________ did, (at) (on board) _____________________, on or about _____________________ 19__, wrongfully or falsely [(sell to _____________________)] [(give to _____________________)] [(loaned to _____________________)] [(dispose of by _____________________)] [(a certain instrument purporting to be) (a) (an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (identification card) (_____________________) in words and figures as follows: _____________________, [he/she, then said _____________________, then well knowing the same to be (false) (unauthorized) (_____________________)."

_____________________19__, wrongfully or falsely [(sell to_____________________)] [(give to_____________________)] [(loaned to_____________________)] [(dispose of by

(b) The elements of the offense of wrongful sale, gift, loan, etc., of false or unauthorized pass shall be as follows:

(1) That, at the time and place alleged, the accused wrongfully sold, gave, loaned, disposed of or tranferred by any means to another person a certain instrument purporting to be an official pass, permit, discharge certificate, identification card, or other official military document;

(2) That the pass, permit, discharge certificate, identification card, or other official military document was false or unauthorized;

(3) That the accused knew that the pass, permit, discharge certificate, identification card, or other official military document was false or unauthorized; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-14 Wrongful use or possession of valid pass, etc

(a) A model specification of the offense of wrongful use or possession of valid pass, etc. shall be as follows:

"In that _____________________ did, (at) (on board) _____________________, on or about _____________________ 19__, wrongfully [(use) (have in his/her possession)] [with intent to (defraud) (deceive)] (a) (an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (identification card) (_____________________) in words and figures as follows: _____________________, [he/she, then said _____________________, then well knowing the same to be unauthorized (_____________________)]."

(b) The elements of the offense of wrongful use or possession of valid pass, etc. shall be as follows:

(1) That, at the time and place alleged, the accused wrongfully used or possessed an official pass, permit, discharge certificate, identification card, order, or other official military document;

(2) That the accused knew that the accused's use or possession of the official military document was unauthorized;

(3) That the accused used or possessed the instrument with an intent to defraud or deceive; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section:

"Intent to defraud" means an intent to obtain an article or thing of value through a misrepresentation and to apply it to one's own use and benefit or the use and benefit of another either temporarily or permanently;

"Intent to deceive" means an intent to mislead, to cheat, to trick another, or to cause another to believe as true that which is false.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-15 False swearing

(a) A model specification for the offense of false swearing shall be as follows:

"In that_____________________did, (at) (on board)_____________________, on or about

_____________________19__, [(in affidavit) (in_____________________)] wrongfully and unlawfully (make) (subscribe) under lawful (oath) (affirmation) a false statement in substance as follows:_____________________, which statement he/she did not then believe to be true."

(b) The elements of the offense of false swearing shall be as follows:

(1) That, at the time and place alleged, the accused took an oath or made an affirmation;

(2) That the oath or affirmation was administered to the accused in a matter in which an oath or affirmation was required or authorized by law;

(3) That the oath or affirmation was administered by a person having authority to do so;

(4) That upon such oath or affirmation the accused willfully made or subscribed a statement;

(5) That the statement was false;

(6) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section:

"Oath" means a formal pledge, coupled with an appeal to a Supreme Being, that the truth will be stated;

"Affirmation" means a solemn and formal pledge, binding upon a person's own conscience that the truth will be stated;

"Subscribe" means to write one's own name on a document for the purpose of adopting its words as one's own expressions.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-16 Firearm, discharging; through carelessness

(a) A model specification for the offense of firearm, discharging; through carelessness shall be as follows:

"In that_____________________did, (at) (on board)_____________________, on or about _____________________19__, through carelessness, discharge a (service rifle) (_____________________) in the (squadron) (tent) (barracks) (_____________________ compartment) (_____________________) of_____________________."

(b) The elements of the offense of firearm, discharging; through carelessness shall be as follows:

(1) That, at the time and place alleged, the accused discharged a firearm;

(2) That the discharge was caused by the carelessness of the accused; and

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section, "carelessness" means negligence. It means the absence of ordinary care. It is an act or failure to act on the part of a person who is under a duty to use due care which demonstrates a lack of care which a reasonably careful person would have used under the same or similar circumstances.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-17 Discharging; willfully, under such circumstances as to endanger life

(a) A model specification for the offense of firearm, discharging; willfully, under such circumstances as to endanger life shall be as follows:

"In that_____________________did, (at) (on board)_____________________, on or about

_____________________19__, wrongfully and willfully discharge a firearm, to wit: _____________________. (in the mess hall of) (under such circumstances as to endanger human life)."

(b) The elements of the offense of firearm, discharging; willfully, under such circumstances as to endanger life shall be as follows:

(1) That, at the time and place alleged, the accused discharged a firearm;

(2) That the discharge was willful and wrongful;

(3) That the discharge was under circumstances such as to endanger human life; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the military forces.

(c) As used in this section:

An act is done "willfully" if done intentionally or on purpose;

"Under circumstances such as to endanger human life," means that there must be a reasonable possibility of harm to human beings. Proof that human life was actually endangered is not required.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-18 Impersonating a commissioned, warrant, noncommissioned, or petty officer, or an agent or official

(a) A model specification of the offense of impersonating a commissioned warrant, noncommissioned, or petty officer, or an agent or official shall be as follows:

"In that_____________________did, (at) (on board)_____________________, on or about _____________________19__, wrongfully, willfully, and unlawfully impersonate [a (commissioned officer) (warrant officer) (noncommissioned officer) (petty officer) (agent of superior authority) of the (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)] [an official of the government of_____________________] by [publicly wearing the uniform and insignia of rank of a (lieutenant of the_____________________) (_____________________) or showing the credentials of_____________________] [_____________________]."

(b) The elements of the offense of impersonating a commissioned officer, warrant, non-commissioned, or petty officer, or an agent or official shall be as follows:

(1) That, at the time and place alleged, the accused impersonated a commissioned, warrant, noncommissioned, or petty officer, or agent of superior authority of the state military forces or any of the armed forces of the United States by publicly wearing the uniform and insignia of the rank of a commissioned, warrant, noncommissioned or petty officer or agent of superior authority of the state military forces or any of the armed forces of the United States or showing credentials of that person.

(2) That this impersonation was wrongful, wilful, and unlawful;

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section, the term "impersonate" means to assume or act the person or role of another.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-19 Indecent exposure

(a) A model specification of the offense of indecent exposure Shall be as follows:

"In that _____________________ did, (at) (on board) _____________________, on or about _____________________ 19__, while (at a barracks window) (_____________________) willfully and wrongfully expose in an indecent manner to public view his/her _____________________."

(b) The elements of the offense of indecent exposure shall be as follows:

(1) That, at the time and place alleged, the accused, while exposed any part of the accused's body to public view in an indecent manner;

(2) That the exposure was wilful and wrongful; and

(3) That, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section:

"Indecent" means'a form of exhibition of a person's private parts which instinctive modesty, human decency, or common propriety require should be customarily kept covered in the presence of others at that particular time and place. An exposure becomes "indecent" when it occurs at a time and place that a person reasonably knows or should know the person's act will be open to the observation of another or others;

"Willfully" means an intentional exposure to public view. The exposure must be done with the intent to be observed by one or more members of the public.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-20 Obstructing justice

(a) A model specification of the offense of obstructing justice shall be as follows:

"In that _____________________ did, (at) (on board) _____________________, on or about _____________________ 19__, wrongfully and unlawfully endeavor to [impede (a trial by court-martial) (an investi-gation) (_____________________)] [influence the actions of (a member of the court-martial) (the military judge of the court-martial) (a trial counsel of the court-martial) (a defense counsel of the court-martial) (an officer responsible for making a recommendation concerning disposition of charges) (an officer responsible for taking action with respect to the findings and sentence of the court-martial) (_____________________)] [(influence) (alter) the testimony, _____________________ of a witness before (a court-martial) (an investigating officer) (_____________________)] in the case of said _____________________ by [(promising) (offering) (giving) to the said _____________________, a threat to _____________________ (if) (unless) he, the said _____________________ would [(vote to acquit the said _____________________ (_____________________) (recommend dismissal of the charges against the said _____________________) (disapprove the findings and sentence in the case of _____________________ and order the charges dismissed)] [(wrongfully refuse to testify) (testify falsely concerning _____________________) (_____________________)] [(at such trial) (before such investigating officer)] [_____________________]."

(b) The elements of the offense of obstructing justice shall be as follows:

(1) That, at the time and place alleged, the accused wrongfully and unlawfully tried to obstruct justice;

(2) That the accused did so in the case of another against whom the accused had reason to believe there were criminal proceedings pending;

(3) That the accused did so by in the manner alleged;

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-21 Perjury, statutory

(a) A model specification of the offense of perjury, statutory shall be as follows:

"In that _____________________, having taken a lawful oath [in a proceeding before (a board of officers) (a court of inquiry) concerning _____________________] [upon the making of an affidavit as to _____________________] [_____________________], a case in which a law of the United States authorized an oath to be administered, that [he/she, then said _____________________, would (testify) (declare) (depose) (certify) truly] [a written (declaration) (deposition) (certificate) subscribed by him/her was true], did _____________________, (at) (on board), on or about _____________________ 19__, willfully and contrary to such oath (state) (subscribe) a material matter, to wit: _____________________, which matter he/she did not then believe to be true."

(b) The elements of the offense of perjury, statutory shall be as follows:

(1) That, at the time and place alleged, the accused took an oath or made an affirmation;

(2) That the oath or affirmation was administered to the accused in a matter in which an oath or affirmation was required or authorized by law;

(3) That the oath or affirmation was administered by a person having authority to do so;

(4) That upon that oath or affirmation the accused wilfully made or subscribed a statement;

(5) That the statement was material;

(6) That the statement was false;

(7) That the accused did not then believe the statement to be true; and

(8) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-22 Perjury, subornation

(a) A model specification of the offense of perjury, subornation shall be as follows:

"In that_____________________did, (at) (on board)_____________________, on or about _____________________19__, procure_____________________to commit perjury by inducting him or her, the said_____________________, to take a lawful (oath) (affirmation) in a (trial by_____________________court-martial of_____________________) (trial by a court of competent jurisdiction, to wit:_____________________of _____________________) (deposition for use in a trial by_____________________of _____________________) (_____________________) that he/she, then said _____________________, would (testify) (depose) (_____________________) willfully, corruptly, and contrary to such (oath) (affirmation) in substance that_____________________, which (testimony) (deposition) (_____________________) was upon a material matter and which the said_____________________did not then believe to be true."

(b) The elements of the offense of perjury, subornation shall be as follows:

(1) That at the time and place alleged the accused induced and procured to take an oath or affirmation in a judicial proceeding and to testify or depose upon that oath or affirmation;

(2) That the oath or affirmation was administered to the other person in a matter in which an oath or affirmation was required or authorized by law;

(3) That the oath or affirmation was administered by a person having authority to do so;

(4) That upon that oath or affirmation the other person wilfully made or subscribed a statement;

(5) That the statement was material;

(6) That the statement was false;

(7) That the accused and the other person did not then believe that statement to be true; and

(8) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-23 Public record, altering, concealing, removing, mutilating, obliterating, or destroying

(a) A model specification of the offense of public record, altering, concealing, removing, mutilating, obliterating, or destroying shall be as follows:

"In that_____________________did, (at) (on board)_____________________, on or about _____________________19__, willfully and unlawfully [(alter) (conceal) (remove) (mutilate) (obliterate) (destroy)] [appropriate with intent to (alter) (conceal) (remove) (mutilate) (obliterate) (destroy) (steal)] a public record, to wit:_____________________, [the (descriptive list) (rough deck log) (quarter-master's note book) of_____________________] [_____________________]."

(b) The elements of the offense of public record, altering, concealing, removing, mutilating, obliterating, or destroying shall be as follows:

(1) That, at the time and place alleged, the accused altered, concealed, removed, mutilated, obliterated, destroyed, or appropriated with the intent to alter, conceal, remove, mutilate, obliterate, destroy, or steal a public record;

(2) That the acts done to the public record was wilful and unlawful; and

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section:

"Willfully" means intentionally or on purpose;

"Appropriate" means to take;

"Intent to steal" means an intent to permanently deprive another person of the use and benefit of property.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-24 Refusing, wrongfully, to testify

(a) A model specification for the offense of refusing, wrongfully, to testify shall be as follows:

"In that_____________________, being in the presence of (a) (an) [(general) (special; court-martial] [duly appointed board of officers] [officer taking a deposition] [_____________________of which_____________________was (military judge) (president), (_____________________), (and having been directed by the said_____________________to answer the following questions put to him/her as a witness, "_____________________" did, (at) (on board) on or about_____________________19__, wrongfully refuse (to qualify as a witness) (to answer said questions)."

(b) The elements of the offense of refusing, wrongfully, to testify shall be as follows:

(1) That the accused was in the presence of:

(A) A general or special court-martial;

(B) A duly appointed board of officers;

(C) An officer conducting an investigation under chapter 124A, HRS;

(D) An officer taking a deposition; or

(E) Other proceeding where testimony may be compelled;

(2) That the presiding official:

(A) Directed the accused to qualify as a witness; or

(B) Directed the accused, after the witness had qualified as a witness, to answer questions as a witness;

(3) That, at the time and place alleged, the accused refused to qualify as a witness or answer the questions;

(4) That the refusal was wrongful; and

(5) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-25 Restriction, breaking

(a) A model specification of the offense of restriction, breaking, shall be as follows:

"In that_____________________, having been duly restricted to the limits of _____________________, did, (at) (on board)_____________________, on or about _____________________19__, break said restriction."

(b) The elements of the offense of restriction, breaking shall be as follows:

(1) That the accused was duly restricted by proper authority to certain limits;

(2) That the accused knew of the accused's restriction and the limits thereof;

(3) That, at the time and place alleged, the accused went beyond the limits of the restriction before the accused had been set free by proper authority; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-26 Sentinel, lookout, offenses against or by (disrespect to)

(a) A model specification of the offense of sentinel, lookout, offenses against or by (disrespect to) shall be as follows:

"In that _____________________, (a prisoner), did, (at) (on board) _____________________, on or about _____________________ 19__, [wrongfully use the following (threatening) (insulting) (threatening and insulting) language, "_____________________" or words to that effect, to] [wrongfully behave in (a) (an) insubordinate) (disrespectful) (insubordinate and disrespectful) manner toward _____________________, by _____________________], (a sentinel) (lookout) in the execution of his/her duty).

(b) The elements of the offense of sentinel lookouts, offenses against or by (disrespect to) shall be as follows:

(1) That another person was a sentinel or lookout at the time and place alleged;

(2) That the accused was a prisoner or knew that this other person was a sentinel or lookout;

(3) That, at the time and place alleged, the accused used threatening, or insulting, language or behavior;

(4) That the use of the language or behavior was wrongful;

(5) That the language or behavior was directed toward and within sight or hearing of the sentinel or lookout alleged;

(6) That the sentinel or lookout alleged was at the time in the execution of duties as a sentinel or lookout; and

(7) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section:

"Threatening" means a clear present determination or intent to injure the person, property or reputation of another presently or in the future;

"Insubordinate" means an intentional defiance of authority.

"Disrespectful" means behavior which detracts from the respect due to the authority of a sentinel or lookout.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-27 Sentinel, lookout, offenses against or by (loitering)

(a) A model specification for the offense of sentinel, lookout, offenses against or by (loitering) shall be as follows:

"In that_____________________, while posted as a (sentinel) (lookout), did (at) (on board)_____________________, on or about_____________________19__, (loiter) (wrongfully sit down) on his post."

(b) The elements of the offense of sentinel, lookout, offenses against or by (loitering) shall be as follows:

(1) That the accused was posted as a sentinel or lookout;

(2) That, at the time and place alleged and while posted as a sentinel or lookout, the accused, without authorization or excuse, loitered, or wrongfully sat down on the accused's post; and

(3) That, under the circumstance, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section "loiter" means to stand around, to move about slowly, to linger, or to lag behind when that conduct is in violation of known instructions or accompanied by a failure to give complete attention to duty.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-28 Stolen property, knowingly receiving, buying, concealing

(a) A model specification for the offense of stolen property, knowingly receiving, buying, concealing shall be as follows:

"In that_____________________, did, (at) (on board)_____________________, on or about _____________________19__, unlawfully (receive) (buy) (conceal)_____________________, of a value of (about) $_____________________, the property of_____________________, which property, as he/she, they said_____________________, then well knew, had been stolen."

(b) The elements of the offense of stolen property, knowingly receiving, buying, concealing shall be as follows:

(1) That, at the time and place alleged, the accused unlawfully received, bought or concealed property;

(2) That the property alleged, was of some value;

(3) That the property belonged to another;

(4) That the property had been stolen by some person other than the accused;

(5) That, at the time the accused received, bought, or concealed the property, the accused then knew it was stolen; and

(6) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-29 Threat, communicating

(a) A model specification for the offense of threat, communicating shall be as follows:

"In that_____________________did, (at) (on board)_____________________, on or about _____________________19__, wrongfully communicate_____________________to a threat to (injure_____________________by_____________________) (accused _____________________of having committed the offense of_____________________) (___________________________)."

(b) The elements of the offense of threat, communicating shall be as follows:

(1) That, at the time and place alleged, the accused communicated a threat;

(2) That the communication was made known to another;

(3) That the language used by the accused under the circumstances amounted to a clear and present determination or intent to injure the person, property, or reputation of another presently or in the future;

(4) That the communication was wrongful, and without justification or excuse; and

(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-30 Unclean accouterment, arms, or uniform

(a) A model specification of the offense of unclean accouterment, arms, or uniform shall be as follows:

"In that_____________________did, (at) (on board)_____________________, on or about _____________________19__, found with an unclean (rifle) (uniform) (_____________________), he/she being at fault in failing to maintain such property in a clean condition."

(b) The elements of the offense of unclean accoutrement, arms, or uniform shall be as follows:

(1) That, at the time and place alleged, the accused was found with an unclean rifle, uniform, or other accouterment;

(2) That the accused had a duty to maintain the rifle, uniform, or other accouterment in a clean condition;

(3) That the accused was at fault in failing to maintain the rifle, uniform, or other accouterment in a clean condition; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-31 Uniform, unclean, improper, appearing in

(a) A model specification for the offense of uniform, unclean, improper, appearing in shall be as follows:

"In that_____________________did, on or about_____________________19__, wrongfully appear (at) (on board)_____________________, (without his/her_____________________) (in an unclean_____________________) (with an unclean_____________________) (___________________________)."

(b) The elements of the offense of uniform, unclean, improper, appearing in shall be as follows:

(1) That, at the time and place alleged, accused appeared without a proper uniform, in an unclean uniform, or with an unclean item of uniform; and

(2) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-32 Unlawful entry

(a) A model specification of the offense of unlawful entry shall be as follows:

"In that_____________________did, on or about_____________________19__, unlawfully enter the dwelling house, garage, warehouse, tent, vegetable garden, orchard, stateroom, (_____________________) of_____________________."

(b) The elements of the offense of unlawful entry shall be as follows:

(1) That, at the time and place alleged, the accused entered upon the premises of another;

(2) That the entry was unlawful; and

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

(c) As used in this section "unlawfully enter" means to enter without the consent of any person authorized to consent to entry or without other lawful authority.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Haw. Code R. § 7-9-33 Wearing unauthorized insignia, decoration, badge, ribbon or lapel button

(a) A model specification of the offense of wearing unauthorized insignia, decoration, badge ribbon, or lapel button shall be as follows:

"In that_____________________did, on or about_____________________19__, wrongfully and without authority wear upon his/her (uniform) (civilian clothing) [the insignia of grade of a (master sergeant of_____________________) (chief gunner's mate of_____________________)] [the Combat Infantryman Badge] [the Distinguished Service Cross] [the ribbon representing the Silver Star] [the label button representing the Legion of Merit] [_____________________]."

(b) The elements of the offense of wearing unauthorized insignia, decoration, badge ribbon, or lapel button shall be as follows:

(1) That, at the time and place alleged the accused wore upon the accused's uniform or civilian clothing an insignia, badge, or decoration;

(2) That the wearing was wrongful and without authority; and

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the state military forces.

History

• [Eff: FEB 11 1985] (Auth: HRS §§ 124A-155, 124A-171) (Imp: HRS § 124A-155)

Subtitle 2 OFFICE OF VETERANS' SERVICES

Chapter 31 SERVICES TO VETERANS

Haw. Code R. § 7-31-1 Definitions

As used in this chapter:

"Dependent of a veteran" means any person who received from a veteran the principal support prior to entry or following entry of the veteran into any of the armed services or following the veteran's discharge from any of the armed services. It includes a dependent of a person currently serving in the service and a former dependent of a discharged or deceased veteran and of a person who has died in such service. It shall not include a dependent of a person discharged under other than honorable conditions.

"Director" means the director of the office of veterans' services as defined in section 363-1, HRS.

"Office means the office of veterans' services as defined in section 363-1, HRS.

"Services to veterans" means services focused on assisting a veteran, the veteran's dependents, or both, to obtain federal as well as state benefits by providing information about available rights and benefits, making referrals to appropriate agencies, and providing counseling and assistance in filling out forms as provided in sections 363-1 to 363-3, HRS.

"Veteran" means any person who has served in any of the armed services of the United States, or any person who is now a citizen of the United States who has served in any of the armed services of any country which was an ally of the United States in any war or campaign in which the United States was also engaged and has been discharged from service."

"VBGP" means the veterans burial grant program.

"World War II (WWII) Filipino veteran" means any Filipino veteran, who is now a citizen of the United States, who served honorably in an active duty status in any of the armed services of the United States between September 1, 1939 and December 31, 1946.

History

• [Eff: 2/9/89; am 9/3/94; am APR 17 1995] (Auth: HRS § 363-2) (Imp: HRS § 363-1)

Haw. Code R. § 7-31-2 Eligibility requirements for service

(a) The following shall be eligible for veterans' services from the office:

(1) Any veteran as defined in section 7-31-1;

(2) Any member of the military currently on active duty who re-enlists in the armed services and any officer currently on active duty shall be assisted if the service is not available to the individual as an active duty personnel; and

(3) Any dependent as defined in section 7-31-1.

(b) The veteran, dependent, or both, shall provide verification of the veteran's status through discharge documents or other documents.

(c) Services enumerated in section 7-31-4.1 shall be limited to disabled veterans as defined by the United States Department of Veterans Affairs.

History

• [Eff: 2/9/89; am SEP 03 1994] (Auth: HRS § 363-2) (Imp: HRS §§ 363-3, 363-11)

Haw. Code R. § 7-31-3 Geographic areas of service, services shall be available statewide

History

• [Eff: FEB 09 1989] (Auth: HRS §363) (Imp: HRS § 363-3)

Haw. Code R. § 7-31-4 Scope of services to veterans

(a) Information and referral services shall include:

(1) Assisting the individual in clarifying and identifying the request or problem for which assistance is needed through personal or telephone discussion with the individual;

(2) Providing counseling and information regarding veterans' benefits; and

(3) Directing and referring veterans to community agencies which provide services, assistance, and benefits to veterans by law or otherwise.

(b)Aid and assistance services shall include:

(1) Assisting with preparation of forms and letters which are necessary to secure benefits and services;

(2) Preparing a statement of financial ability to sponsor immigrants. The office shall assist the veteran to prepare the affidavit of support form required by the Immigration and Naturalization Service for the admission of an alien. The affidavit of support form shall serve as evidence that should the alien be admitted, whether for permanent residency, vacation, or other reason, the alien will not become a public charge;

(3) Securing free certified copies of vital statistics for the veteran as well as a dependent of a veteran who requires the documents to support a claim for benefits. The office shall arrange with the state department of health and the circuit courts for copies of the document which include:

(A) Birth certificate;

(B) Death certificate;

(C) Marriage certificate;

(D) Adoption decree; or

(E) Divorce decree;

(4) Burial in veterans' cemeteries in Hawaii, Kauai, and Maui counties. When requested by the veteran's family, the office shall assist the family to secure burial in county veterans' cemeteries, and shall assist in the coordination of funeral activities. On Oahu, the family shall arrange burial with the United States Department of Veterans Affairs, the National Memorial Cemetery of the Pacific, and the mortuary; and

(5) Assisting with legal change of name for which the veteran is required to pay all costs. Assistance shall include:

(A) Providing services necessary to coordinate and expedite the process of legal change of name; and

(B) Processing the change after the veteran submits all necessary documents such as birth certificate of petitioner, all discharge papers, children's birth certificates, spouse's birth certificate, if the spouse also desires change of name."

History

• [Eff 2/9/89; am SEP 03 1994 ] (Auth: HRS §§ 363-2, 363-11) (Imp: HRS §§ 363-3, 363-5, 363-11)

Haw. Code R. § 7-31-5 Authorization for service

Services to veterans shall be authorized for individuals meeting eligibility requirements as specified in sections 7-31-2, 7-31-4, and 7-31-4.1.

History

• [Eff: FEB 09 1989] (Auth: HRS § 363-2) (Imp: HRS §§ 363-2, 363-3)

Haw. Code R. § 7-31-6 Termination of service

Services to veterans shall be terminated when one or both of the following conditions exist:

(1) The veteran's request for information and referral services, or aid and assistance services, or both, as provided in sections 7-31-4 and 7-31-4.1 have been completed; or

(2) The veteran no longer desires assistance and voluntarily terminates contact with the agency.

History

• [Eff: FEB 09 1989] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Chapter 32 HAWAII STATE VETERANS CEMETERY RULES OF PRACTICE AND PROCEDURE

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 7-32-1 Purpose

The purpose of this chapter is to establish rules for the Hawaii state veterans cemetery on Oahu.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-2 Definitions

As used in this chapter unless otherwise provided:

"Armed forces" means the United States Army, Navy, Marine Corps, Coast Guard, and Air Force or any women's auxiliary branch thereof, organized pursuant to an Act of Congress.

"Cemetery" means the Hawaii state veterans cemetery.

"Designated cemetery official" means those persons so designated by the director to act as agents for the Hawaii state veterans cemetery.

"Columbarium" means a structure with niches for the inurnment of human remains.

"Director" means the director of the office of veterans' services as defined in section 363-2, HRS.

"Grave" means the space of ground in the cemetery used, or intended to be used, for burial of human remains.

"Hawaii state veterans cemetery" means that cemetery located at 45-349 Kamehameha Highway, Kaneohe, on the parcel identified as tax map key 4-5-33-2, and any future additions.

"Interment" means the disposition of human remains by burial or inurnment.

"Inurnment" means the placement of cremated remains in a plot or in a niche.

"Liner" means a grave liner or vault as defined by the director.

"Niche" means a space in a columbarium used, or intended to be used, for inurnment of cremated human remains.

"Office" means the office of veterans' services.

"Public records" means records and information available for public inspection as provided by state or federal law.

"Space" means area in the cemetery used, or intended to be used, for interment or inurnment of human remains.

History

• [Eff 8/10/91; am SEP 03 1994] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-3 Authority; supervision

(a) The director and a designated cemetery official shall be authorized to enforce this chapter.

(b) A designated cemetery official shall have charge of the grounds and buildings, and at all times shall supervise and control all persons in the cemetery, including the conduct of funerals, ceremonies, traffic, employees, and visitors.

(c) Anyone violating this chapter may have their permission to enter or remain upon the cemetery premises revoked by the director or a designated cemetery official.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-4 Hours

(a) The director or a designated cemetery official shall establish a reasonable schedule of visiting hours for all or portions of the cemetery and close or restrict public use of all or any portion thereof, when necessary for the protection of the area, maintenance, upkeep, construction, or the safety and welfare of persons or property, by the posting of appropriate signs indicating the extent and scope of closure.

(b) All persons shall observe and abide by the officially posted signs designating closed areas and visiting hours.

(c) Hours of operation for the cemetery are:

(1) Visitors: Sunrise to sunset, in coordination with the gate opening and closing schedule of the Hawaiian Memorial Park Cemetery.

(2) Office: 7:45 a.m. to 4:30 p.m.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-5 Visitors

(a) Visitors may be admitted during the hours the cemetery is open.

(b) Visitors shall not be permitted to:

(1) Litter the grounds;

(2) Cut, break, remove, or injure trees, shrubs, grass, or other plantings;

(3) Use the cemetery for any form of sports or recreation, including but not limited to:

(A) Jogging;

(B) Skate boarding;

(C) Bicycling;

(D) Picnicking;

(E) Ball playing;

(F) Consumption of intoxicating beverages or illegal use of controlled substances;

(G) Loitering;

(H) Pets. This section shall not apply to seeing-eye dogs accompanying their masters.

(I) Any service, ceremony or demonstration, except as authorized by a designated cemetery official.

(c) Visitors at public gatherings or ceremonies shall observe proper standards of decorum and decency while upon the cemetery premises.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-6 Traffic control

(a) The director or a designated cemetery official shall adopt such rules as may be necessary to manage, provide for safety and to control traffic including, but not limited to, the operation and parking of sightseeing or chartered buses or other vehicles.

(b) The speed of vehicles in the cemetery may not exceed posted speeds.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-7 Fee structure

(a) By law, the State holds title to all gravesites.

(b) There shall be no charge for the gravesite or its perpetual care, however;

(c) To compensate for the opening and closing of graves the following fee structure is in effect:

(1) For interment of veterans,

(A) The State shall receive the veteran's plot allowance.

(B) The State shall supply a liner or the representative may purchase another liner if that liner meets the guidelines defined by the director and incurs no cost to the State.

(2) For interment of eligible dependents, the State shall receive from the dependent's survivor or representative the sum equivalent to the amount of the plot allowance, plus the cost of the required liner.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-8 Flags

(a) The United States flag shall be flown over the cemetery continually.

(b) The flag shall be flown at half-staff on Memorial Day and during interment services and wreath-laying ceremonies.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-9 Floral, decorative, and commemorative objects

(a) Cut natural flowers, wreaths, and sprays in containers may be placed on, but not attached to, graves or in designated areas in the columbarium at any time.

(b) The religious convention of placing fruit, beverages, and religious artifacts on the graves shall be allowed.

(c) Potted plants shall be permitted only during the period ten days before and ten days after Easter Sunday, Christmas Day, Hana Matsuri, O-Bon.

(d) Potted plants, permanent plantings, artificial flowers, statues, vigil lights, commemorative items, or toys shall not be permitted, except as provided in this section.

(e) Floral displays shall be removed by cemetery personnel when faded or withered.

(f) Glass containers or objects shall not be allowed at any time.

(g) Any type of adhesive tape or wire or metal fasteners shall not be used to attach objects to headstones or columbaria walls. Only wood products shall be used to hold objects on gravestones.

History

• [Eff: 8/10/91; am SEP 03 1994] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-10 Memorialization

No person shall make or install any monument, memorial, tablet, or other commemorative installation, except with the written permission of the director or a designated cemetery official.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-11 Gifts, devises, or bequests

(a) The director may prescribe restrictions and accept non-monetary gifts, devises, or bequests which are beneficial to the cemetery.

(b) Gifts, devises, or bequests shall be accepted only after it has been determined that the donor has a clear understanding that title thereto passes to, and shall be vested in, the office, and that the donor relinquishes all control over the future use or disposition of the gift or donation, except as agreed upon between the director and the donor.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-12 Public information and public records

(a) All public records shall be available for inspection in the office.

(b) Public records printed or reproduced by the office may be given to any person requesting the same and paying the reasonable cost thereof, including the cost of reproduction and mailing, or where a charge is specified by law or by rule, such specified charges.

(c) Requests for public information, for permission to inspect public records, or for copies of public records shall be made in writing to the director.

History

• [Eff: AUG 10 1991] (Auth: HRS §§ 92F, 363-2) (Imp: HRS §§ 92F, 363-2)

Haw. Code R. § 7-32-13 Corrections

The director or a designated cemetery official shall have the right to correct any errors that may be made by it, either in making interments or disinterments, or in setting the grave marker, and reserves the right to correct any errors in its official records of interments and graves.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Subchapter 2 ELIGIBILITY

Haw. Code R. § 7-32-14 Eligibility for burial

(a) Title 38, part 1, section 620 of the Code of Federal Regulations, as it existed on August 23, 1989, shall govern the procedures pertaining to eligibility for interment in the cemetery.

(b) The burden of proof of eligibility for burial in the cemetery shall be on the applicant for such burial.

(c) A designated cemetery official shall determine the eligibility of a person for interment or inurement in the cemetery in accordance with this chapter and shall issue such determination in writing.

(d) In questionable cases relating to character of discharge and verifying service information, eligibility shall be based on a determination by the United States Department of Veterans Affairs regional office concerning the character of discharge and verification of service information.

(e) A veteran, representative, or next of kin may appeal any determination of a designated cemetery official as provided under subsection (c) regarding the eligibility of a veteran, or dependent, for burial in the cemetery.

(1) The appeal shall be in writing, shall include all information to be considered as the basis of the appeal, and shall be filed with the director no more than seven days after notification of the initial determination made by a designated cemetery official;

(2) Chapter 91, Hawaii Revised Statutes, shall govern the appeal hearing process;

(3) The director shall render a decision in writing no more than seven days after conclusion of the hearing on the appeal;

(4) The veteran, representative, or next of kin filing the appeal may, pursuant to chapter 91, Hawaii Revised Statutes, request an expedited appeal by agreeing to modify or waive any procedure and informally dispose of any case by stipulation, agreed settlement, consent order, or default of the parties and the director shall respond to the appeal within three working days of its submission.

(f) Chapter 91, Hawaii Revised Statutes, shall govern the admissibility, preservation and use of evidence for this section.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2; 38 CFR §1.620)

Haw. Code R. § 7-32-15 Persons eligible for interment or inurement

Persons eligible for interment or inurement shall include:

(a) Any former member or member of the armed forces who was born in Hawaii, or was a resident of Hawaii at entrance to or separation from the armed forces, or was a resident of Hawaii for two continuous years, or was a resident of Hawaii for six months prior to the time of death, or showed intention to become a resident; and

(1) Died while serving on active duty;

(2) Served as an active member of the armed forces and was honorably discharged or released under honorable conditions;

(3) Any citizen of the United States who, during any war in which the United States has been or may hereafter be engaged, served in the armed forces of any government allied with the United States during that war, whose last such service terminated honorably, who was a citizen of the United States at the time of entry in such service and at the time of death; or

(4) Served as a member of a reserve component of the armed forces, the Army National Guard, the Air National Guard, or the Reserve Officers' Training Corps of the Army, Navy, or Air Force and whose death occurred under honorable conditions while serving on active duty for training or performing full-time service, or while hospitalized or undergoing treatment for service-related conditions.

(b) The spouse, widow, or widower of an eligible active duty member or veteran, including the widow or widower of a member of the armed forces lost or buried at sea or officially determined to be permanently absent in the status of missing in action;

(c) The surviving spouse of a veteran whose remarriage was annulled or otherwise declared void by a court of competent jurisdiction;

(d) Minor children of an eligible active duty member or veteran who are unmarried and:

(1) Who are under twenty-one years of age; or

(2) Who are under twenty-three years of age and pursuing a course of instruction at an approved educational institution;

(e) Adult children of an eligible active duty member or veteran who were declared physically or mentally disabled and incapable of self-support before attaining the age of twenty-one years, and have written documentation such as medical records, or a letter from an attending physician;

(f) Commissioned officers of other services who were detailed or transferred to active duty and who served honorably and were provided with a DD Form 214, or equivalent, upon separation;

(g) The remains of eligible persons previously interred in other locations may be reinterred in the cemetery upon the request of anyone legally entitled to make such request; provided, that no cost shall be borne by the State other than that which would be incurred in an original interment.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2; 38 CFR §1.620)

Subchapter 3 OPERATIONS

Haw. Code R. § 7-32-16 Interment, inurnment

(a) The State shall open and close the grave in accordance with the fee schedule established in this chapter and furnish perpetual care without charge.

(b) All graves shall be equal, have a uniform type of flat marker. Military rank or civilian stature shall be given no consideration in selection of the grave, and the space selection shall be made by a designated cemetery official.

(c) Reservation of space shall not be allowed.

(d) The funeral director shall be responsible for making interment arrangements for an eligible decedent. The funeral director shall submit all documents as may be required or requested by the office to determine the eligibility of the decedent to be interred in the cemetery.

(e) Three working days notice shall be given to schedule the interment or inurnment in the cemetery.

(f) All applications for burial in the cemetery shall be processed by a designated cemetery official who shall determine the eligibility of the decedent to be interred.

(g) After the decedent has been determined eligible, the burial shall be scheduled after consultation with the funeral director, and under no circumstances shall a burial be arranged by the funeral director without first securing approval from a designated cemetery official.

(h) All expenses incurred by the survivors or representative for the funeral services and supplies provided by a funeral director of their choice and transportation shall be the responsibility of the survivors or representative.

(i) All funerals on entering the cemetery shall be under the supervision of a designated cemetery official.

(j) Services shall be held at the committal shelter. Every effort shall be made to accommodate special religious traditions by individual arrangements with a designated cemetery official.

(k) Arranging for military honors shall be the responsibility of the next of kin, representative or funeral director, not the cemetery.

(l) Graves shall be closed as soon as practicable after the interment session or before the close of that business day.

(m) Graves shall be temporarily marked using a temporary grave marker until the department of veterans affairs provides the permanent marker for each grave.

(n) Each grave shall be marked with a marker furnished by the department of veterans affairs. Ordering of markers shall be the responsibility of the cemetery. No other parties may order a marker for placement within the cemetery.

History

• [Eff: 8/10/91; am SEP 03 1994] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-17 Disinterment

(a) Interment of eligible decedents shall be considered to be permanent and final.

(b) Disinterment and removal of remains shall be permitted only with the prior approval of the director.

(c) All arrangements and all expenses in connection with a disinterment shall be the responsibility of the requesting individual or agency. These arrangements shall include compliance with the local and State health laws or rules, engagement of a funeral director to accomplish the disinterment, necessary re-casketing of the remains, rehabilitation of the old grave, and compliance with any special instruction of the director.

(d) Disinterments shall be supervised at the gravesite by the director or a designated cemetery official.

(1) Special care and concern shall be shown for adjacent graves and markers.

(2) Cemetery personnel shall reopen the grave down to one foot above the top of the grave liner vault or casket.

(A) Cemetery personnel shall not otherwise participate in any other aspect of the disinterment operation.

(B) No charge shall be made for the supervision and reopening of the grave to the extent indicated above.

(e) The marker of the grave being disinterred shall not be shipped to the cemetery where the remains are to be interred.

(f) If the decedent being disinterred is to be reinterred at another location within the cemetery, the same marker shall be removed and reordered showing the change of grave location and placed at the new gravesite.

(g) When a disinterment has been completed, the open grave shall be reused at the earliest practical date.

History

• [Eff: 8/10/91; am SEP 03 1994] (Auth: HRS § 363-2) (Imp: HRS § 363-2)

Haw. Code R. § 7-32-18 Directed exhumation

(a) Federal and Hawaii court orders directing exhumations shall be honored.

(b) Exhumations on the basis of orders issued by out-of-State courts, or courts of questionable authority, shall be conducted if such orders are enforceable in Hawaii.

(c) The issuing court must indicate the final disposition of the exhumed remains.

(d) Exhumation activities shall be coordinated with the ordering court and carried out under the supervision of the director or a designated cemetery official.

(1) If the remains are to be permanently removed from the cemetery, arrangements shall be made for immediate removal and the grave may be reused.

(2) If the remains are to be reinterred in the cemetery, the same grave shall be used.

(e) Court orders and other pertinent documentation shall be retained at the cemetery as a permanent record of the action.

(f) All expenses for directed exhumations shall be the responsibility of the requesting party.

History

• [Eff: AUG 10 1991] (Auth: HRS § 363-2) (Imp: HRS § 363-2)