La. Admin. Code tit. 41 § II-913
A. The following definitions shall apply throughout this regulation unless otherwise expressly provided.
Abet - to encourage, incite, or aid another to commit a crime. [LCMJ Article 77.]
Accessory After the Fact - any person subject to the LCMJ who, knowing that an offense punishable by the Code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial or punishment. [LCMJ Article 78.]
Accused - one who is charged with an offense under the LCMJ. Synonymous with "Defendant."
Accuser -a ny person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than official interest in the prosecution of the accused.
Act - includes a failure or omission to perform a legal duty.
Actual Knowledge - a state wherein the person in fact knows of the existence of an order, regulation, fact, etc., in question.
Additional Charges - new and separate charges preferred while other preferred charges are still pending against the same accused.
Adjutant General - a general officer appointed by the Governor to act as the Adjutant General of the Louisiana Military Forces pursuant to R.S. 29:10. Abbreviated as TAG.
Admission - a self-incriminatory statement falling short of a complete acknowledgement of guilt. See also, "Confession."
Admonition - a warning or reminder given to an offender that a specific act is considered to be misconduct; given to deter repetition and to advise the offender of the consequences that may flow from a recurrence of that misconduct. May be oral or written, but usually oral.
Affirmation - see Oath.
Aider and Abettor - one who shares the criminal intent or purpose of the perpetrator, and hence is liable as a principal. [LCMJ Article 77.]
Allegation - the assertion, declaration, or statement of a party in a pleading of what he expects to prove.
Allege - to assert or state in a pleading; to plead in a specification.
Appeal - a complaint to a superior court of an injustice done or error committed by an inferior court whose judgment or decision the court above is called upon to correct or reverse.
Appellant - one who brings an appeal.
Apprehension - the taking of a person into temporary custody upon a reasonable belief that the person apprehended has committed an offense under the LCMJ. [See LCMJ Article 7(A) and definitions of Arrest and Detention.]
Arraignment - the reading of the charges and specifications to the accused or the waiver of their reading coupled with the accused's plea thereto.
Arrest - the moral restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits. [See LCMJ Article 9(A) and definitions of Apprehension and Detention.]
Arrest in Quarters - a moral restraint limiting an officer's liberty, imposed as a non-judicial punishment by the governor, TAG, or a designee. [See LCMJ Article 15.]
Article 15 - see "Non-judicial Punishment."
Article 32 Investigation - a formal investigation that must precede the referral of any charge to a general court-martial. See LCMJ Article 32.
Article 39(a) Session - a session of a general or special courts-martial called by the military judge, to dispose of matters not amounting to trial of the accused. [LCMJ Article 39.]
Assault - an attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated. [LCMJ Article 128.]
Attempt - an act, or acts, done with a specific intent to commit an offense under the LCMJ, amounting to more than mere preparation, and tending, but failing to effect the commission of such offense.
Bad Conduct Discharge - one of two types of punitive discharges that may be awarded an enlisted person under a GCM or SPCM, designed as a punishment for bad conduct. Also called a "BCD." [LCMJ Articles 18 and 19.]
Battery - an unlawful and intentional or culpably negligent application of force to the person of another by a material agency used directly or indirectly. [LCMJ Article 128.]
Challenge - a formal objection to a member of a court or the military judge continuing as such in subsequent proceedings. May be either a challenge for cause - objections based on a fact or circumstance which disqualifies the person challenged from further participation in the proceedings, or peremptory challenge - an objection permitted without a showing of grounds or basis, except that the military judge cannot be peremptorily challenged.
Charge - a formal statement of the LCMJ article(s) which the accused is charged with having violated.
Charge and Specification - a description in writing of the offense(s) which the accused is alleged to have committed; each specification, together with the charge under which it is placed, constitutes a separate accusation.
Circumstantial Evidence - evidence which tends directly to prove or disprove not a fact in issue, but a fact or circumstance from which, either alone or in connection with other facts, a court may, according to the common experience of mankind, reasonably infer the existence or nonexistence of another fact which is in the issue; sometimes called indirect evidence.
Clear Injustice - existence of unwaived legal or factual error which clearly and affirmatively injured the substantial rights of a Service member (e.g., discovery of new evidence unquestionably exculpating a convicted Service member). See also, "Setting Aside and Restoration."
Command - an organization having a commander who is regarded by superior authority as the individual chiefly responsible for maintenance of discipline therein. Includes companies and batteries, numbered units and detachments, battalions, brigades, service schools, squadrons, wings, groups, flights, and area commands. For example, an infantry company, whether or not separated or detached, is considered to be a command. An infantry platoon, however, which is part of a company and is not separate or detached, is not a command. If the platoon were located in an armory separate from the main company's armory, the platoon normally would be considered a separate, detached command. An order. Any demanding of another to do an act towards commission of a crime. [LCMJ Article 77.]
Commander or Commanding Officer - includes any commissioned officer who by virtue of rank and assignment exercises primary command over a military organization. Primary command authority does not include staff officers. However, for purposes of administration of military justice under LCMJ, all assistant adjutants general serving in the federally-recognized grade of brigadier general or above are considered commanding officers. For LCMJ Article 138 purposes, this includes an officer in the complainant's chain of command, up to and including the first officer exercising special court-martial jurisdiction over the complainant. A commanding officer against whom an Article 138 complaint has been lodged as referred to in this regulation is called the "respondent," (not to be confused with the identical term used in connection with administrative board proceedings under AR 15-6).
Commissioned Officer - an officer who holds a commission issued by the President of the United States or the Governor of the State of Louisiana.
Common Trial - a trial in which two or more persons are charged with the commission of an offense or offenses which, although not jointly committed, were committed at the same time and place and are provable by the same evidence.
Complainant - under LCMJ Article 138, a member of the Louisiana National Guard who has submitted an Article 138 complaint as referred to in Chapter 9 of this regulation. In civilian criminal law, a complainant refers to anyone who has reported a crime.
Concurrent Jurisdiction - jurisdiction which is possessed over the same parties or subject matter at the same time by two or more separate tribunals. [See Paragraph 5-3 regarding referral to civilian authorities.]
Conditional Guilty Plea - a plea of guilty that reserves in writing the right to appeal adverse determinations of pretrial motions.
Conditions on Liberty - a form of pretrial restraint; orders directing a person to do or refrain from doing certain acts.
Confession - an acknowledgement of guilt of an offense. See also, "Admission."
Confinement - the physical restraint of a person, imposed by either oral or written orders of competent authority, depriving him of freedom. [LCMJ Article 9(A).]
Confinement Facility - facility for the confinement of military prisoners. It applies to transient confinement facilities, installation confinement facilities, area confinement facilities and hospitalized prisoner wards.
Conspiracy - a combination of two or more persons who have agreed to accomplish, by concerted action, an unlawful purpose or some purpose not in itself unlawful but accomplished by unlawful means, and the doing of some act by one or more of the conspirators to effect the object of that agreement. [LCMJ Article 81.]
Constructive Knowledge - knowledge which may be found to have existed because the regulation, notice, fact or directive, etc., at issue was of so notorious a nature, or was so conspicuously posted or distributed, that the accused ought to have known of its existence; knowledge is constructive when it is shown that the accused would in the ordinary course of events, or by the exercise of ordinary care, have secured knowledge of the order, notice or movement, etc.
Court Members - persons designated to serve upon courts-martials for purposes of adjudication as addressed in LCMJ Article 25.
Convening Authority - the officer having the authority to convene a court-martial and/or his successor(s) in command.
Convening Order - the document by which a court-martial is created, which specifies the type of court and lists the time and place of meeting, the names of the members (if any), trial and defense counsel, the military judge, and, when appropriate, the authority by which the court is created.
Convicted - adjudicated guilty after a guilty plea or after trial on the merits.
Copy - an accurate representation, however made. When necessary and feasible, includes a copy by handwriting.
Counseling - actions designed to advise subordinates of their errors and specific ways to improve. Directly or indirectly advising or encouraging another to commit an offense. [LCMJ Article 77.]
Court-Martial - a military tribunal composed of one or more eligible members of the armed forces (the number depending on the type of court), the functions of which are to decide whether a person subject to military law has committed a violation of the LCMJ, and, if so, to adjudge an appropriate punishment therefore. Includes:
a. the military judge and members of a general court-martial;
b. the military judge when a session of a special court-martial is conducted;
c. the summary court-martial officer. [LCMJ Articles 18-20.]
Court-Martial Orders - either a "Convening Order" or a "Promulgating Order." See respective definitions.
Court of Inquiry - the most formal fact-finding body convened in the Military Department, governed by LCMJ Article 135.
Credibility - worthiness of belief.
Culpable - deserving blame.
Custody - that restraint of free movement which is imposed by lawful apprehension.
Custom - a practice which: has been long continued; is certain or uniform; is compulsory, consistent, general, and known; and is not in opposition to the terms and provisions of a statute or lawful regulation or order.
Dangerous Weapon - a weapon used in a manner likely to produce death or grievous bodily harm.
Days - when a period of time is expressed in a number of days, the period shall be in calendar days, unless otherwise specified. Unless otherwise specified, the date on which the period begins shall not count, but the date on which the period ends shall count as one day.
Defendant - see Accused.
Defense Counsel - a commissioned officer of the Louisiana National Guard, certified and detailed by the SJA to represent an accused at a special/general courts-martial. Such military counsel will be provided to the accused without expense. The term may also refer to "Individual Civilian Counsel" retained by an accused to defend him.
Deferment of Confinement - a postponement of the running and service of a sentence to confinement.
Deposition - the testimony of a witness taken out of court, reduced to writing, under oath or affirmation, before a person empowered to administer oaths, in answer to interrogatories (questions) and cross- interrogatories submitted by the party desiring the deposition and the opposite party, or based on oral examination by counsel for accused and the prosecution.
Design - specifically intended; inferred from conduct so shockingly and grossly devoid of care as to leave room for no reasonable inference but that the result was contemplated as a probable result of the course of conduct followed.
Destroyed - not completely demolished or annihilated, but only sufficiently injured to be useless for the purpose for which it was intended. [LCMJ Article 108.]
Detail - order to a person to perform a specific temporary duty.
Detention - the imposition of custody by competent authority, pending disposition of offense(s) for a period no longer than 24 hours. [See LCMJ Article 7(A) and 9(A) and definitions of Apprehension and Arrest.]
Discharge - complete severance from all military status gained by the enlistment or induction concerned.
Dishonorable Discharge - the most severe punitive discharge, reserved for those who should be separated under conditions of dishonor, after having been convicted of offenses usually recognized by the civil law as felonies, or of offenses of military nature requiring severe punishment.
Dominion - control of property; possession of property with the ability to exercise control over it.
Dual Offense - conduct that constitutes an offense punishable under both civilian criminal laws and the LCMJ.
Due Process - a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights, such as exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe.
Duty Status - duty in the National Guard under an order issued by authority of law, and includes travel to and from such duty. [LCMJ Article 1.]
Elements - the essential ingredients of an offense; the acts or omissions which form the basis of any particular offense. Listed in the LCMJ, Annotated (Yellow Tab of Louisiana Military Justice Law Manual) Part IV of the Manual for Courts-Martial.
Enlisted Member - a person in an enlisted grade. LCMJ Article 1.
Evidence - information admissible before a court of law which tends to prove or disprove any matter in question or to influence belief respecting it.
Exigent Circumstances - circumstances calling for immediate action or remedy, as in imperative need to search when no time exists to obtain a search warrant. [See M.R.E.. 315(g), 316(d)(4)(B), and R.C.M. 302(e)(B).]
Felony - under Louisiana law, an offense punishable by death or imprisonment at hard labor [La. C.Cr.P. Article 933; See also, R.S. 14:2, and the definition of Misdemeanor.]
Financial Liability - personal, joint, or corporate statutory obligation to reimburse the Louisiana Military Department or the U.S. Government for Government property lost, damaged, or destroyed because of negligence or misconduct, including wrongful appropriation. [See AR 735-5.]
Fine - punishment that makes the accused liable to the State of Louisiana for a specified amount of money.
Forfeiture of Pay - punishment that deprives the accused of all or part of his future pay.
Formal Proceedings - non-judicial Punishment proceedings that are accompanied by the full procedural and substantive requirements of LCMJ Article 15, this Regulation, and other published guidance.
Former Jeopardy - the rule of law that no person shall be tried for the same offense by the same sovereign a second time without his consent. Known also as "double jeopardy." [LCMJ Article 44.]
General Court-Martial - a military tribunal comprised of (copy from LCMJ) whose function is to decide whether a member subject to the LCMJ has committed a violation of that Code and, if so, to adjudge punishment therefore. Also known as "GCM."
Grade - a step or degree, in a graduated scale of office or military rank that is established and designated as a grade by law or regulation. LCMJ Article 1.
Inference - a deduction based upon reason from a fact or facts proved.
Judge Advocate - a commissioned officer of the Judge Advocate General's Corps of the U.S. Army, Air Force, Navy, Marine Corps, or Coast Guard.
Jurisdiction - the power of a court to hear and decide a case and to impose any appropriate and lawful punishment.
Knowingly - with knowledge; consciously, intelligently.
Lesser Included Offense - an offense necessarily included in the offense charged; an offense containing some, but not all, of the elements of the offense charged, so that, if one or more of the elements of the offense charged is not proved, the evidence may still support a finding of guilty of the included offense.
Magistrate - a Judge Advocate empowered to perform judicial functions such as issuing search warrants. Also includes a U.S. Magistrate as defined in 28 U.S.C. Article 631 and following.
Matter in Aggravation - any circumstance attending the commission of a crime which increases its enormity.
Matter in Extenuation - any circumstance serving to explain the commission of the offense, including the reasons that actuated the accused, but not extending to a legal justification.
Members - the members of a court-martial are the voting members detained by the convening authority. As used in this regulation, "member" also may refer to a Service member, Service member, Soldier or Airman.
Mental Responsibility - the concept that a person is not responsible for criminal conduct if at the time of such conduct as a result of a mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
Military Court - a court-martial or court of inquiry.
Military Judge - a Judge Advocate who has been certified by TJAG or the SJA as qualified to preside over GCM's and/or SPCM's in accordance with LCMJ Article 26. LCMJ Article 1.
Misdemeanor - offense other than a felony, including ordinance violation that provides a penal sanction [La. C.Cr.P. Article 933.]
Mistrial - the situation existing when it becomes apparent that either party cannot receive a fair and impartial hearing before the sitting tribunal.
Mitigation - a reduction in either the quantity or quality of a punishment appropriate because of an accused's subsequent good conduct or disproportionateness of an original sentence.
Motion to Dismiss - a motion raising any defense or objection in bar or trial.
National Guard - the Louisiana Army and Air National Guard.
Neglect - omission or failure to do an act or perform a duty due to want of due care or attention.
Negligence - the omission to do something which a reasonable person, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent person would not do; the absence of due care; the legal standard that defines what would have been done by a reasonable, prudent person in the same or similar circumstances; as used in the LCMJ, the failure to exercise the care, prudence, or attention to duties which the interests of the Government require to be exercised by a prudent and reasonable person under the circumstances.
Non-Judicial Punishment - also known as "Article 15." Disciplinary punishment levied under LCMJ Article 15 for minor offenses, without the intervention of a court-martial. See Chapter 4.
Oath - a solemn declaration to testify truthfully, administered in a form calculated to awaken the conscience and impress the mind with the duty to so do. Includes "Affirmation."
On Duty - as used in LCMJ Article 112, the exercise of duties of routine or detain in garrison, at a station, or in the field. Does not relate to those periods when, no duty being required of them by order regulations, officers and enlisted persons occupy the status of leisure known as "off duty" or on "liberty."
Party - the accused and any defense or associate or assistant defense counsel and agents of the defense counsel when acting on behalf of the accused with respect to the court-martial in question. Any trial or assistant trial counsel representing the government, and any agents of the trial counsel with respect to the court-martial in question.
Performance Fiche - that portion of the Official Military Personnel File (OMPF) that is routinely used by career managers and selection boards for the purpose of assignment, promotion, and schooling selection. See also Restricted Fiche.
Pleading - the written formal indictment by which an accused is charged with an offense; in military law, the pleadings are called charges and specifications.
Possession - physical control over an item of property.
Preferral - the act of signing and swearing to court-martial charges.
Presumption - a justifiable inference; a well-recognized example of the use of circumstantial evidence, the weight or effect of which should be measured only in terms of its logical value.
Principal - one who aids, abets, counsels, commands, or procures another to commit an offense which is subsequently perpetrated in consequence of such counsel, command or procuring, whether he is present or absent at the commission of the offense; The perpetrator of an offense. [LCMJ Article 78.]
Private Dwelling - a service member's dwelling, on or off military premises, such as a single family house or apartment. The quarters may be owned, leased, rented by the service member, or assigned, and may be occupies on a temporary or permanent basis. It does not include living areas in military barracks, aircraft, vehicles, tents, bunkers, field encampments, and similar places, whether or not subdivided into individual units.
Probable Cause - prerequisite for a valid search and seizure or arrest. It consists of reliable facts indicating to a reasonable person the probability that a crime has been committed and the person in question committed it or that evidence of a crime is located in the place to be searched.
Procedural Law - the rules of pleading and practice by which rights are accorded and enforced.
Promulgating Orders - an order issued by the Convening Authority publishing the result of a court-martial and the convening authority's action and any later action taken of the case. Not required for Summary Courts-Martial.
Punitive Articles - LCMJ Articles 77 through 134, which generally tract the corresponding UCMJ Articles and state how they may define the conduct made criminal.
Punitive Discharge - a Bad Conduct Discharge (BCD) or a Dishonorable Discharge (DD) from military service.
Rank - the order of precedence among members of the Louisiana National Guard. LCMJ Article 1.
Redress - under LCMJ Article 138, authorized action by any officer in the complainant's chain of command to effect the revocation of a previous official action or otherwise to restore to the complainant any rights, privileges, property, or status lost as a result of a wrong.
Referral of Charges - the order of a convening authority that charges against an accused will be tried by a specified court-martial.
Remission - the cancellation of any portion of the unexecuted punishment.
Reprimand - an act of formal censure that reproves or rebukes an offender for misconduct; a reproof, rebuke, censure, strong criticism, or "chewing out" for failing to comply with the established standard. May be oral or written, but usually written.
Request for Redress - under LCMJ Article 138, the complainant's written request directed to the commanding officer whom he believes has committed the wrong. See Paragraph 9-4.
Respondent - the one against whom an Administrative Discharge Board action has been initiated. Under LCMJ Article 138, a commanding officer against whom an Article 138 complaint has been made.
Restricted Fiche - that portion of the Official Military Personnel File (OMPF) that contains information not normally viewed by career managers or selection boards except as provided in AR 640-10 or specified in the Secretary of Army's written instructions to the selection board. See also Performance Fiche.
Restriction in Lieu of Arrest - moral restraint, less severe than arrest, imposed upon a person by oral or written orders, limiting him or her to specified areas of a military command, with the further provision that he or she will participate in all military duties and activities of the organization while under such restriction.
Revision - a procedure to correct an apparent error or omission or improper or inconsistent action of a court-martial with respect to a finding or a sentence.
Self-Incrimination - the giving of evidence against oneself which tends to establish guilt of an offense.
Separation - an all-inclusive term applied to personnel actions resulting from release from active duty, discharge, retirement, dropped from the rolls, release from military control or personnel without a military status or death.
Setting Aside and Restoration - action in which the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored based on finding of "clear injustice."
Special Court-Martial - a military tribunal comprised of (copy from LCMJ) whose function is to decide whether a member subject to the LCMJ has committed a violation of that Code and, if so, to adjudge punishment therefore. Also known as "SPCM."
Specification - a formal statement of specific acts and circumstances relied upon as constituting the offense charged. See also, Charge.
State - the State of Louisiana. LCMJ Article 1(13).
State Judge Advocate - the Judge Advocate responsible for supervising the administration of military justice in the Louisiana National Guard, and designated as the principal legal advisor to TAG. Also known as "SJA."
State Military Forces - the National Guard of the State, as defined in 32 U.S.C. Section 101,, and any other military forces organized under the laws of the state, when not in a status subjecting them to jurisdiction under Chapter 47 of Title 10, U.S.C. (LCMJ Article 1).
Statute of Limitations - the rule of law which establishes the time within which an accused must be charged with an offense. Synonymous with Prescription.
Substantive Law - that portion of the body of law which contains rights and duties and regulations of the government, as distinguished from Procedural Law, which is that part containing the rules and remedies by which the substantive law is administered.
Superior Commissioned Officer - a commissioned officer superior in rank or command. [LCMJ Article 1.] Under LCMJ Article 138, a commissioned officer in the complainant's current chain of command that is senior to the complainant in grade, rank, or position. [See paragraph 9-5.]
Supplementary Action - in Non-judicial Punishment proceedings, any action taken by an appropriate authority to suspend, vacate, mitigate, remit, or set aside a punishment (except punishment imposed under summarized proceedings after action has been taken on an appeal or DA Form 2627 has been distributed.
Suspension - to hold a punishment in abeyance and not put it into effect for a specified period of time, resulting in a probationary period during which time the Service member may demonstrate his good conduct and efficiency.
Trial on the Merits - trial on the issue of guilt or innocence.
Usage - a general habit, mode, or course of procedure.
Unlawful Command Influence - improper attempts by the convening authority to affect the outcome of a court-martial. Each commander is vested by law with the authority and sole discretion to take - or decline to take - action under the LCMJ in cases arising in his command, unless a superior commander has restricted or withheld the authority to act. Any unauthorized interference by superior authority with the free and independent exercise of this power is called "unlawful command influence" and is itself punishable under the Code.
Vacation of Suspension - termination of a period of probation under a suspended sentence so that a Service member's original punishment may be effectuated.
Willful - deliberate, voluntary, and intentional, as distinguished from acts committed through inadvertence, accident, or ordinary negligence.
Wrong - under LCMJ Article 138, a discretionary act or omission by a commanding officer, under color of Federal or State military authority, which adversely affects the complainant personally and which is:
a. in violation of law or regulation;
b. beyond the legitimate authority of that commanding officer;
c. arbitrary, capricious, or an abuse of discretion; or
d. materially unfair.
Wrongful - contrary to law, regulation, lawful order or custom.
La. Admin. Code tit. 41, § II-913