The Military Disciplinary Code Military Disciplinary Code Version as of 16. August 2001 (Federal Law Gazette (BGBI.

I, p. 2093), last amended by Art. 86 of the regulation dated 17. December 2008 (Federal Law Gazette BGBl. I, p. 2586)1 Table of Contents Introductory Provisions 1 2 3 4 5 6 7 8 9 10 Purview and Personal Applicability Previously committed Disciplinary Offenses Inspection of Records by the Soldier Participation of the Spokesperson Notifications Instruction concerning Legal Remedies and Appeals Disciplinary Record Extinction in the Record Information Reimbursement of Witnesses and Experts Section I Appreciation of Exceptional Performances by Official Recognition 11 12 13 14 Prerequisites for and Types of Official Recognition Responsibility for conferring Official Recognition Conferment of Official Recognition Withdrawal of Official Recognition Section II Punishment of Disciplinary Offenses by Disciplinary Measures Chapter I General Provisions 15 16 17 18 19 20 21 Disciplinary Measures, Principle of Discretion Disciplinary Measures in Relation to Criminal Punishment and Corrective Measures Lapse of Time Prohibition of Multiple, Principle of Uniform Punishment Right of Pardon Search and Seizure Provisional Arrest

11

Will become effective on 01. September 2009 (see also 85, section 2).

Chapter II The Disciplinary Authority of the Disciplinary Superiors and its Use 1. 22 23 24 25 26 2. 27 28 29 30 31 3. 32 33 34 35 36 37 38 39 40 41 4. 42 5. Simple Disciplinary Measures Types of Simple Disciplinary Measures Reprimand, Severe Reprimand Disciplinary Fine Confinement to Quarters Disciplinary Arrest Disciplinary Authority Disciplinary Superiors Levels of Disciplinary Authority Responsibility of the Immediate Disciplinary Superior Responsibility of the Next in Rank Disciplinary Superior Disciplinary Authority according to Rank The Use of Disciplinary Authority Investigation by the Disciplinary Superior Duty of the Disciplinary Superior to Examine the Course of Action to be Taken Binding Effect of Facts established in other Decisions Independence of the Disciplinary Superior Refraining from the Imposition of a Disciplinary Measure Imposition of a Disciplinary Measure Guidelines for Determination of the Disciplinary Measure Consideration of Periods of Confinement in the Disciplinary Measure Role of the Judge in the Imposition of the Disciplinary Arrest Disciplinary Superior and the Disciplinary Court Proceedings Complaints against Measures and Decisions of the Disciplinary Superior Application of the Military Complaints Regulations Reexamination

43 Revocation of a Disciplinary Measure in the Case of subsequent Criminal Proceedings or Proceedings for the Imposition of an Administrative Fine 44 Revocation or Alteration of a Disciplinary Measure for other Reasons 45 Proceedings for the Revocation or Alteration of a Disciplinary Measure 46 Supervision 6. 47 48 49 50 Enforcement Enforceability of the Disciplinary Measures Enforcing Superior Suspension, Delay and Interruption of Enforcement Enforcement of Reprimand and Severe Reprimand

 51 Enforcement of Disciplinary Fines 52 Enforcement of Confinement to Quarters 53 Enforcement and Execution of Disciplinary Arrest 54 Compensation in the Case of Subsequent Revocation of an Enforced Disciplinary Measure 55 Improvised Measures for Disciplinary Arrest 56 Enforcement of Disciplinary Fines and Disciplinary Arrest in Connection with the Day of Discharge 57 Limitation of Enforcement Chapter III Disciplinary Court Proceedings 1. Judicial Disciplinary Measures Types of Judicial Disciplinary Measures Cut in Emoluments Debarment from Promotion Reduction in Pay Grade Demotion Disciplinary Discharge Cut in Pension Deprivation of Pension Deprivation of Rank Disciplinary Measures against former Soldiers who are deemed Retired Soldiers

58 59 60 61 62 63 64 65 66 67 2. 68

Military Service Courts Definition of Military Service Courts

a) Bundeswehr Disciplinary and Complaints Court 69 70 71 72 73 74 75 76 77 78 79 Establishment Responsibility Composition Presidential Constitution Supervision Honorary Judges The Bench Enlarged Bench Exclusion from Justiceship Defaulting Honorary Judges Suspension and Expiration of the Office as a Honorary Judge

b) Federal Administrative Court 80 3. Military Affairs Division, Establishment, Composition, Responsibility Disciplinary Attorneys for the Armed Forces

 81 4. 82 83 84 85 86 87 88 89 90 91 5. 92 93 94 95 96 6. 97 7.

Organization and Tasks General Provisions Concerning Disciplinary Court Proceedings Proceedings against Former Soldiers Suspension of Disciplinary Court Proceedings Binding Effect of Facts Established in other Decisions Incapacity of the Soldier to stand Trial Witnesses and Experts Inpermissibility of Arrest Expert Opinion on the Mental State Summons to Appear Legal Defense Supplementary Provisions Institution of the Proceedings Preliminary Investigations Order to Institute Proceedings Instituting Authorities Request by the Soldier for the Institution of the Proceedings Subsequent Disciplinary Court Proceedings Investigation by the Disciplinary Attorney for the Armed Forces Principles for the Investigation Proceedings up to the Trial Stay of Proceedings The Charge Service of the Charge Recourse to the Bundeswehr Disciplinary and Complaints Court Notice of the Decision of the Disciplinary Court Summons to the Trial, Period Indicated in the Summons

98 99 100 101 102 103 8.

The Trial Participation of the Soldier in the Trial Principle of the Exclusion of the Public Taking of Evidence Subject of the Deliberations Leading to the Judgement Decision of the Bundeswehr Disciplinary and Complaints Court Payment of a Support Contribution Support Contribution in the Case of Assistance in the Disclosure of Criminal Offenses Signature of the Judgement, Service of the Judgement

104 105 106 107 108 109 110 111 9.

Proceedings Concerning Application for Litigation

112 Application

 113 Proceedings 10. Legal Remedies a) Appeal from Court Decisions 114 Regulations for the Appeal Proceedings b) Appeal (on Points of Fact and Law) 115 116 117 118 119 120 121 122 123 124 Admissibility and Periods Prescribed for the Appeal Filing and Justification of the Appeal Inadmissible Appeal Service of the Appeal Forwarding of Files to the Federal Administrative Court Ruling of the Court of Appeal Judgement of the Court of Appeal Obligation of the Bundeswehr Disciplinary and Complaints Court Principles Governing the Proceedings Non-appearance of the Soldier

c) Res Judicata 125 Legal Force of Judicial Decisions 11. Temporary Suspension, Retention of Emoluments 126 Admissibility, Effectiveness, Legal Remedies 127 Forfeiture and Back Payment of the Amounts of Money Retained 12. Proceedings Concerning Application to the Military Service Court in the Case of Subsequent Imposition of a Punishment by a Criminal Court 128 Requirements and Responsibility 13. Reopening of the Disciplinary Court Proceedings 129 130 131 132 133 134 Admissibility of the Reopening Inadmissibility of the Reopening Application, Period, Proceedings Decision by Ruling Oral Proceedings, Decision by Judgement Legal Consequences, Compensation

14. Enforcement of Disciplinary Measures 135 Execution of the Enforcement 15. Expensae Litis

 136 137 138 139 140 141 142

General Extent of the Liability to Pay Costs Liability of the Soldier and the Federal Republic of Germany to Pay Costs Costs of Legal Remedies and Appeals Necessary Expenses Decision on Costs Determination of Costs Concluding Provisions

143 144 145 146 147 148

Special Provisions for Temporary-career Volunteers Special Discharge of a Soldier Binding Effect of Disciplinary Decisions for Courts Authorization to Promulgate a Statutory Order Transitional Provisions Restriction of Basic Rights

Introductory Provisions 1 Purview and Personal Applicability (1) This law shall regulate the recognition of outstanding performances by official recognition and the punishment of disciplinary offenses by disciplinary measures. (2) This law shall apply to soldiers. It shall furthermore apply to those who have done their military service (former soldiers), insofar as this law does not dictate otherwise. (3) Former soldiers who are not entitled to retirement pensions but are entitled to any other benefits accruing from service or vocational advancement, shall be, in the meaning of this law, deemed retired soldiers until the end of the granting of these benefits. The benefits that they receive shall be deemed retirement pensions. 2 Previously Committed Disciplinary Offenses (1) A soldier who reenlists, after termination of a previous service period, may be liable to proceedings for disciplinary offenses or acts constituting a disciplinary offense committed during his/her previous service period or thereafter. (2) To regular soldiers or temporary-career volunteers who have previously served as a civil servant or judge this law shall also apply with regard to those disciplinary offenses committed during their previous service assignment or committed while being entitled to maintenance; also for those retired or discharged from such a service assignment, the acts listed in 77, section 2 Federal Civil Service Act shall be deemed a disciplinary offense. A change of assignment/unit shall not exclude the application of this law. The simple disciplinary measures the Military Service Court may impose are a reprimand or a disciplinary fine. 3 Inspection of Records by the Soldier (1) The soldier shall be granted authorization to inspect his/her records, insofar as this may be possible without endangering the purpose of the investigations. In the case of a hearing pursuant to 14, section 1, subsection 3, pursuant to 32, section 5, subsection 1 or after service of the charge, the soldier shall be granted inspection of the records without this restriction. If the soldier has the right to inspect his/her records, the soldier shall be entitled to make copies of it or to let them be copied at his/her own cost. (2) Files and documents that the soldier is not entitled to inspect shall neither be requested nor utilized. 4 Participation of the Spokesperson 27 and 28 Military Personnel Representation Act shall apply to the participation of spokespersons in decisions based on this law. The soldier shall be informed about the result of the hearing of the spokesperson before his/her own hearing pursuant to 14, section 1,

subsection 3, 32, section 5, subsection 1 or 93, section 1, subsection 2. 5 Notifications (1) The notifications prescribed in this law shall be carried out:

1. By handing over to the receiver upon acknowledgement of receipt or, if the receipt or the issuing of the acknowledgement of receipt is rejected, by production of a record of the handing over 2. 3. By a registered letter with advice of delivery Ex officio or according to the provisions of the Code of Civil Procedure

4. To authorities and offices also by submission of the files together with the originals of the documents to be served; the receiver shall to make a note in the records stating the day of the submission. (2) Submission according to section 1, no 3 may also be effected by a soldier. Upon request by a disciplinary attorney for the armed forces the chairman of a Bundeswehr Disciplinary and complaints Court division shall allow a service by public notice. (3) If the person authorized to receive has provably received a document, it shall be deemed served from that point of time, at the latest. 6 Instruction concerning Legal Remedies and Appeals In all decisions which may be subject to appeal according to this law, the soldier or the former soldier shall be informed in writing on the possibility of legal remedies, on the bodies where an appeal or legal remedy is to be lodged and on the form of the legal remedy and the respective time limits. 7 Disciplinary Record Any official recognition, unappealable disciplinary measures, and punishments shall be recorded in the disciplinary record. 8 Extinction in the Record (1) Any official recognition shall be extinct if the revocation of it has become incontestable.

(2) A simple disciplinary measure shall be effaced after three years, a reduction of emoluments shall be effaced after 5 years, and a debarment from promotion, even in connection with a reduction of emoluments, shall be effaced after 7 years. The period shall begin the day the disciplinary measure has been imposed or with the pronouncement of the first judgement. If, during the period, a soldier comes under final sentence for another act, or if a disciplinary

measure is unappealably imposed upon him/her, the period shall recommence. Section 2, subsection 2 shall apply to the beginning of the period. (3) If a disciplinary measure is rescinded, it shall be extinct from the disciplinary record. If the disciplinary measure pursuant to section 3, subsection 1 had any effect on the periods for extinction, they shall be newly computed. (4) Sentences shall be extinct:

1. After 5 years, if the soldier has been sentenced to a term of imprisonment of more than one year 2. After three years in all other cases

The period shall begin with the pronouncement of the first judgement, in the case of orders imposing punishment with the signing by the judge. (5) If, in the case of a reduction of emoluments, the enforcement has not ended after 5 years, the period shall be extended until the end of the enforcement. (6) Simple disciplinary measures, which have been imposed after a reduction of emoluments or a debarment from promotion, shall only be extinct when the reduction of emoluments or the debarment from promotion may be extinct. (7) Official recognitions, disciplinary measures and punishments shall no longer be a factor for consideration when they are to be extinct; they shall be removed from the disciplinary record and the personal files. (8) Upon expiration of the period for extinction, the soldier shall be entitled to refuse to supply any information concerning the disciplinary measure and the reason for it. He/she shall be allowed to claim that no disciplinary measure has been imposed upon him/her. (9) Documents on the establishment of the disciplinary offense shall be removed from the personal files after a period of two years. Section 2, subsection 2 as well as section 7 and 8 shall apply mutatis mutandis. 9 Information (1) Without the permission of the soldier or former soldier, information about official recognitions, disciplinary measures and judicial sentences recorded in the disciplinary record, notifications about investigations of the disciplinary superior, about preliminary investigations of the disciplinary attorney for the armed forces, and about disciplinary court proceedings as well as facts deriving from such proceedings shall only be given to: 1. Offices within the area of responsibility of the Federal Ministry of Defense, courts and the public prosecution offices, in so far as the fulfillment of the tasks of the receiver of this information demands it The infringed party for the safeguarding of its rights

2.

Under these preconditions also a handing over of documents shall be admissible (2) The receiver shall only be entitled to use or work with the given information for the purpose for which he/she has received them (3) Other laws and regulations that allow for the giving of information shall remain unaffected. Information about official recognitions, disciplinary measures, and judicial sentences recorded in the disciplinary record which are either extinct or due for extinction, shall only be given with the consent of the soldier or former soldier. 10 Reimbursement of Witnesses and Experts Witnesses and experts, which are not provided through official channels, shall be entitled to remuneration or reimbursements according to the law governing remuneration and reimbursement of persons at court (Justizvergtungs- und entschdigungsgesetz).

11 Prerequisites for and Types of Official Recognition (1) Exemplary performance of duties or outstanding individual acts may be recognized by way of official recognition (2) 1. 2. (3) (4) Official recognitions are: Recognition in the company order or in the order of the day Recognition in the Federal Ministry of Defense Gazette An official recognition may also be linked with special leave of up to 14 days Exceptional performances may also be recognized by way of other types of distinction 12 Responsibility for Conferring Official Recognition (1) 1. Entitled to confer Official Recognition are: The company commander or another disciplinary superior with the disciplinary power of a company commander or with a higher disciplinary authority: Recognition in the company order or in the order of the day 2. The Federal Minister of Defense: Recognition in the Federal Ministry of Defense Gazette (2) Entitled to grant special leave are:

1.

The company commander or another disciplinary superior with the disciplinary power of a company commander: Special leave for up to 5 days

2.

The battalion commander or another disciplinary superior with the disciplinary power of a battalion commander: Special leave for up to 7 days

3.

The regimental commander or another disciplinary superior with the disciplinary power of a regimental commander: Special leave for up to 14 days 13 Conferment of Official Recognition

(1) Strict criteria shall be applied to the decision as to whether or not an official recognition may be conferred. The character of the soldier shall be such that he/she is worthy of such official recognition. His/her comrades shall see the justification of the conferment of official recognition. (2) The time at which the special leave may be taken shall be determined by the superior responsible for granting the annual leave. (3) If the official recognition is conferred by a higher disciplinary superior, the immediate disciplinary superior of the soldier shall be heard. 14 Withdrawal of Official Recognition (1) The official recognition shall be withdrawn if it turns out that the prerequisites under which the official recognition was conferred did not exist. Reasons for the withdrawal shall be stated. The soldier shall be heard before the decision. (2) The instituting authority shall decide upon the withdrawal. If a higher disciplinary superior has conferred the official recognition, he/she shall have power of decision. If the office of the higher disciplinary superior has ceased to exist, the authority of the power of decision shall be designated by the Federal Minister of Defense. (3) If an official recognition is withdrawn, it shall simultaneously be decided as to whether or not special leave already taken is to be subtracted, wholly or partly, from the annual leave. If it constitutes an exceptional hardship, a subtraction of the special leave already taken from the annual leave shall be excluded. (4) The decision shall be served on the soldier.

Section II Punishment of Disciplinary Offenses by Disciplinary Measures CHAPTER I GENERAL PROVISIONS 15 Disciplinary Measures, Principle of Discretion (1) Disciplinary offenses ( 23 Legal Status of Military Personnel Act) may be punished by simple disciplinary measures ( 22) or judicial disciplinary measures ( 58). The right to impose judicial disciplinary measures shall be reserved to the Military Service Courts. (2) Upon due consideration, the disciplinary superior shall decide whether and to which extent, pursuant to this law, action shall be taken for a committed disciplinary offense; in this process he/she shall bear in mind the overall conduct of the soldier, both on and off duty. 16 Disciplinary Measures in Relation to Criminal Punishment and Corrective Measures (1) If a court or an authority has unappealably imposed a punishment or a corrective measure, or if an act, pursuant to 153a, section 1, subsection 5 or section 2, subsection 2 German Code of Criminal Procedure, can no longer be prosecuted as an offense due to fulfillment of obligations and directives, for the same facts: 1. 2. Simple disciplinary measures except for disciplinary arrest shall not be imposed. Disciplinary arrest, reduction of emoluments or a cut in pension may only be imposed if this is additionally required to maintain the military order, or if the misconduct has seriously damaged the reputation of the Bundeswehr.

(2) If a disciplinary arrest is imposed, any other confinement shall be allowed for; the duration of the disciplinary arrest together with the other term of confinement shall not exceed three weeks. (3) If a soldier is acquitted of a charge in the course of criminal proceedings or proceedings for the imposition of administrative fines, a disciplinary measure may only be imposed, or disciplinary court proceedings may only be instituted in case the facts establish a disciplinary offense without constituting the facts of a penal or administrative provision. Before institution or resumption of the investigations, the soldier shall be informed which facts still constitute a breach of duty he/she is accused to have committed. 17 Lapse of Time (1) Disciplinary matters shall be processed in a timely manner.

(2) If 6 months have elapsed since the committal of a disciplinary offense, a simple disciplinary measure shall no longer be imposed.

(3) If three years have elapsed since the committal of a disciplinary offense, a reduction of emoluments or a cut in pension shall no longer be imposed. (4) If 5 years have elapsed since the committal of a disciplinary offense, a debarment from promotion shall no longer be imposed. (5) If criminal proceedings, proceedings for the imposition of an administrative fine or disciplinary court proceedings have been instituted against a soldier in consequence of the same case, prior to expiration of the prescribed period, or if the facts of the case are the subject of a complaint, military flight accident or diving accident investigations or of a maritime accident, the running of the period of time shall be suspended for the duration of these proceedings. 18 Prohibition of Multiple, Principle of Uniform Punishment (1) A disciplinary offense shall be the subject of disciplinary punishment only once. Section 96 shall remain unaffected. (2) Several breaches of duty committed by a soldier or a former soldier that can be decided upon simultaneously shall be punished as one disciplinary offense. 19 Right of Pardon (1) The Federal President shall have the right of pardon for disciplinary measures imposed pursuant to this law. He/she may exercise this right himself/herself or delegate its execution to other offices. (2) If a discharge from service or the deprivation of pension is reversed by way of pardon, 52 Legal Status of Military Personnel Act shall apply mutatis mutandis. 20 Search and Seizure (1) In the course of the clarification of a disciplinary offense, the disciplinary superior shall only be allowed to carry out searches and seizures outside of homes and only upon judicial order by the judge of the responsible Bundeswehr Disciplinary and Complaints Court, or, if necessary, the next Bundeswehr Disciplinary and Complaints Court. Only a soldier who is suspected of the committal of a disciplinary offense may be searched. The belongings and the soldier himself/herself shall be the subject of the search. Subject to a possible seizure shall be all items that may be helpful in the clarification of a disciplinary offense. It may be ordered against every soldier. (2) In case of imminent danger, the disciplinary superior may be allowed to take the measures pursuant to section 1 without previous judicial order. The judicial approval shall be applied for immediately. The application for judicial approval shall state the grounds on which it is based. Any originated files shall be attached to the application. The judge shall state the grounds on which a decision for an absolute or partly refusal of approval or a confirmation of the latter is based. The disciplinary superior may seek recourse to the Bundeswehr Disciplinary and Complaints Court within three days. 20, subsections 3 and 4 shall apply mutatis mutandis. The

Bundeswehr Disciplinary and Complaints Courts shall decide finally by issuing a formal decision. Before all decisions which subject is the approval of the measures listed in section 1, the soldier shall be heard. He/she shall be served the decision. (3) 32, section 2 shall apply mutatis mutandis to the carrying out of measures pursuant to section 1. The search of a soldier shall only be carried out by a person of the same sex or by a physician, who shall not be the unit surgeon of the soldier; this shall not apply, if the immediate search of the soldier is necessary to protect against an imminent danger for life or limb. Only the disciplinary superior may be entitled to a review of the private papers of a soldier. (4) Insofar as it does not impede the purpose of the investigation, the soldier facing a measure pursuant to section 1 shall be informed orally about the reasons. He shall be granted presence while the measure is being carried out. If the soldier is not immediately attainable, a witness shall be called in. An immediate record shall be made of the search and its essential result as well as of the seizure, in which, in the case no judicial order was issued, the facts leading to the assumption of an imminent danger must be given. Upon request, the soldier shall be served a copy of the record. (5) Above and beyond, 94, section 1 and 2, 95, section 1, 97, 109 and 111k of the German Code of Criminal Procedure shall apply mutatis mutandis. 21 Provisional Arrest (1) Every disciplinary superior shall be entitled to provisionally arrest soldiers who are under his/her disciplinary authority for a disciplinary offense, if the maintenance of discipline demands it. (2) The same authority shall be vested with: 1. Each soldier on policing duty, including the military guards, vis--vis every soldier, if the disciplinary superiors cannot be contacted immediately, 2. a) every military superior vis--vis every soldier to whom he/she is entitled to give orders, b) every officer and noncommissioned officer vis--vis every soldier who is in inferior in rank, if the disciplinary superior normally responsible or a soldier on policing duty, including the military guards, cannot be contacted immediately. In the cases pursuant to letter (b), the arresting officer or noncommissioned officer shall become the superior of the arrestee by virtue of declaration of the arrest.

(3)

Military guards may only be arrested by the officer of the guard.

(4) The arrestee shall be released as soon as the maintenance of the discipline no longer necessitates the detention or, at the latest, at the end of the day after the provisional arrest was made, unless a judicial warrant for reason of suspicion of a criminal offense has been released

beforehand. After an interrogation by the commander and on his/her order, on board of a ship outside the territorial waters of the Federal Republic of Germany the arrestee may be kept in detention, even without a judicial warrant, for longer than the period prescribed in subsection 1, insofar as and as long as he/she constitutes a direct threat for ship or people which cannot be averted in any other way. In the course of the interrogation, the arrestee shall be told the circumstances which justify the assumption that he/she has committed a disciplinary offense and poses a threat to the ship or the people. The interrogation shall give him/her the opportunity to eliminate grounds for suspicion and to present those facts which speak in his/her favour. (5) The reason for the arrest and the precise time the arrest was made as well as the time of the release shall be taken down in written form. In the cases pursuant to section 2 and 3, the provisional arrest shall be reported immediately to the unit/activity of the arrestee. Chapter II The Disciplinary Authority of the Disciplinary Superiors and its Use 1. Simple Disciplinary Measures 22 Types of Simple Disciplinary Measures (1) Disciplinary measures which a disciplinary superior may impose (simple disciplinary measures) are: 1. 2. 3. 4. 5. (2) 1. 2. Reprimand Severe Reprimand Disciplinary Fine Confinement to Quarters Disciplinary Arrest The following measures may be combined: Disciplinary arrest and confinement to quarters, in the case of absence without leave of the soldier for more than one day, confinement to quarters and a disciplinary fine or disciplinary arrest and a disciplinary fine.

In all other cases, only one disciplinary measure shall be permissible for the same disciplinary offense. (3) A simple disciplinary measure shall not stand in the way of the promotion of a soldier who has otherwise proven his/her worth.

 23 Reprimand, Severe Reprimand (1) (2) A reprimand is the formal stricture of a specific undutiful conduct of the soldier. A severe reprimand is a reprimand that is issued in front of the unit.

(3) Disapprobatory remarks made by a disciplinary superior, which are not expressly a reprimand or a severe reprimand (advice, warnings, rebukes or similar measures), do not constitute a disciplinary measure. This shall also apply if they are combined with a decision, in which the disciplinary superior or the instituting authority establishes a disciplinary offense, but refrains from imposing a disciplinary measure or from the initiation of disciplinary court proceedings. 24 Disciplinary Fine (1) The disciplinary fine shall not exceed the emoluments or the military pay of one month. In the case of a soldier whose period of military service is less than a month, the disciplinary fine shall not exceed the amount he/she is entitled to receive for his/her military service. (2) When determining the disciplinary fine, the personal and economic circumstances of the soldier shall be taken into consideration. 25 Confinement to Quarters (1) Confinement to quarters means that the soldier is forbidden to leave his/her military accommodation without permission. It may be made stricter by imposing that the soldier, for the entire duration or on certain days, is forbidden to enter the community rooms or to receive visitors (strict confinement to quarters). The stricter measures pursuant to subsection 2 may also be imposed separately. (2) The confinement to quarters shall last at least three days and three weeks at the most. It may only be imposed on those soldiers who, upon official order pursuant to 18 Legal Status of Military Personnel Act, are obliged to live in communal accommodation. 26 Disciplinary Arrest Disciplinary arrest is the simple deprivation of liberty. It shall last at least three days and three weeks at the most. 2. Disciplinary Authority 27 Disciplinary Superiors (1) The power to impose disciplinary measures and to take the decisions and measures (disciplinary authority) normally incumbent on disciplinary superiors, shall lie with those

officers entitled to it pursuant to this law, with their administrative superiors and with superiors holding comparable offices, who are vested with this authority by the Federal Minister of Defense for the fulfillment of special tasks. The highest disciplinary superior shall be the Federal Minister of Defense. (2) The disciplinary authority shall be vested in the office. It may not be transferred. It automatically passes to the deputy commander. If the holder of the office or the deputy commander do not hold the rank of an officer, the disciplinary authority shall pass to the disciplinary superior who is next higher in rank. (3) Breaches of the medical duties by medical officers shall be punished by superior medical officers. This shall also apply, if the breach of a medical duty coincides with a breach of other duties. 28 Levels of Disciplinary Authority (1) The extent of the disciplinary authority is inherent in the office of the disciplinary superior. Entitled to impose the disciplinary measures are: 1. a) The company commander or an officer holding a corresponding office on noncommissioned officers and enlisted soldiers: reprimand, severe reprimand, disciplinary fine and confinement to quarters and disciplinary arrest for up to 7 days, on officers: reprimand. The battalion commander or an officer holding a corresponding office on noncommissioned officers and enlisted soldiers: all types of simple disciplinary measures, on officers all types of simple disciplinary measures, with the exception of the disciplinary arrest. The Federal Minister of Defense as well as all officers from the rank of a regimental commander and brigade commander upwards and the officers holding corresponding offices: all types of simple disciplinary measures. The Federal Minister of Defense shall have the power to determine which superiors are holding corresponding offices in the meaning of no 1 to 3. (2) A disciplinary superior shall have the disciplinary authority of the next higher level, if the disciplinary superior normally responsible is not available and if the military discipline demands immediate action. Any such cases shall be reported immediately to the disciplinary superior normally responsible.

b) 2. a) b) 3.

 29 Responsibility of the Immediate Disciplinary Superior (1) If this law does not dictate otherwise, the immediate disciplinary superior shall exercise disciplinary authority. Immediate disciplinary superior shall be the lowest ranking superior vested with disciplinary authority, to whom the soldier reports directly. The responsibility for the disciplinary punishment of the spokesperson shall be regulated by 14, section 2 Military Personnel Representation Act. (2) If there is a change of command before the case is closed, the new disciplinary superior shall become responsible. This shall apply particularly in case of transfer to another unit or temporary detachment of a unit from its formation and in the case of temporary duty, unless the office which orders the temporary duty dictates otherwise. (3) In those cases involving temporary detachment, the disciplinary authority may not be exercised against persons equal or higher in rank. 30 Responsibility of the Next in Rank Disciplinary Superior (1) The next in rank disciplinary superior shall be responsible, if the action cannot be punished by the immediate disciplinary superior, because: 1. 2. 3. 4. The immediate disciplinary superior has been involved in the committal of the offense. In cases pursuant to 29, section 3, the offense has been committed by a person equal or higher in rank. The offense has been committed by a spokesperson, unless the prerequisites pursuant to 14, section 2, subsection 2 Military Personnel Representation Act are at hand. The immediate disciplinary superior is not available and the military discipline demands immediate action. Any such cases shall be reported immediately to the disciplinary superior normally responsible.

(2) The next in rank disciplinary superior shall be, furthermore, responsible for punishing a disciplinary offense, if the immediate disciplinary superior reports that: 1. 2. 3. His/her disciplinary authority is insufficient ( 28, section 1, no 1 and 2) He/she has been personally injured by the offense He/she considers himself/herself to be biased

(3) In the cases pursuant to section 1, no 1 to 3 and section 2 the immediate disciplinary superior must report the disciplinary offense to the next in rank disciplinary superior.

 31 Disciplinary Authority according to Rank (1) The local commanders, the leaders of specifically tailored detachments and officers holding similar offices shall have the following disciplinary authority according to their rank, unless they are entitled to exercise a higher disciplinary authority on the basis of other offices held by them: 1. 2. 3. A lieutenant, first lieutenant, a captain or a captain, senior grade or an officer with a corresponding rank shall have the disciplinary powers of a company commander. A major, lieutenant colonel or an officer with a corresponding rank shall have the disciplinary powers of a battalion commander. A colonel or an officer with a corresponding or higher rank shall have the disciplinary powers of the highest level ( 28, section 1, no 3).

The Federal Minister of Defense determines which officers shall have disciplinary powers according to the MDC. (2) For the disciplinary authority of the deputy in command, the rank of the deputy shall be decisive. (3) The disciplinary authority of these superiors shall only exist, if the military discipline demands immediate action and the disciplinary superior normally responsible is not available. Any such cases shall be reported immediately to the disciplinary superior normally responsible. (4) The commander of a Bundeswehr hospital may exercise disciplinary authority, if the military discipline demands immediate action. Section 3, subsection 2 shall remain unaffected. 3. The Use of Disciplinary Authority 32 Investigation by the Disciplinary Superior (1) If circumstances are established that give reason to suspect the committal of a disciplinary offense, the disciplinary superior shall be obliged to investigate the facts of the case. The contents of oral hearings shall be included in the records. (2) The disciplinary superior may delegate the clarification of the facts to another officer. In cases of lesser importance, the disciplinary superior may entrust the company sergeant or a noncommissioned officer holding a corresponding office with the hearing of the witnesses, as long as these are enlisted soldiers or junior noncommissioned officers. (3) In the process of the clarification of the facts of the case, the incriminating circumstances, the exonerating circumstances and the factors influencing type and severity of the disciplinary measure shall be established. (4) The soldier shall be informed about the investigations as soon as this is possible without endangering the purpose of the investigations. He/she shall be informed on the breaches of duty

of which he/she is accused at the beginning of the first interrogation. His/her attention shall be simultaneously drawn to the fact, that he/she is free to speak on the case or to remain silent. If he/she testifies, he/she is obliged to speak the truth in all service-related matters. If there was no such instruction as prescribed in subsection 2 and 3, or if this instruction has been given incorrectly, the testimony of the soldier shall not be used to his/her disadvantage. (5) Before any decision may be taken, the soldier shall always be asked, if he/she has anything to say in his/her defense. A record of the interrogation shall be taken; this record shall be signed by the soldier. 33 Duty of the Disciplinary Superior to Examine the Course of Action to be Taken (1) If the soldier has committed a disciplinary offense, the disciplinary superior shall determine whether an educational measure would be sufficient or whether he/she wants to impose a disciplinary measure. He shall furthermore check whether he/she has to report the disciplinary offense in order to impose a disciplinary measure or whether he/she has to bring about the decision of the instituting authority. (2) The disciplinary superior shall only initiate disciplinary measures if all other measures have proved unsuccessful. If the disciplinary superior wants to impose a disciplinary measure, he/she must consider the guilt of the soldier a proven fact. (3) If the disciplinary offense constitutes a criminal offense, the disciplinary superior shall assign the case to the competent prosecuting authority, irrespective of the examination pursuant to section 1, provided this is necessary because of the need to maintain military order, the nature or seriousness of the offence, or the extent of responsibility. He may postpone disciplinary measures until the conclusion of the criminal proceedings or other pending criminal proceedings because of the same offense, which were instituted after he/she has referred it to the court. This shall not apply, if the inquiry into the facts is certain, or if the case cannot be heard in the course of the criminal proceedings because of reasons that derive either from the soldier or from his/her conduct. 34 Binding Effect of Facts Established in other Decisions (1) The facts established in the final judgement of criminal proceedings or proceedings for the imposition of an administrative fine shall be binding on the disciplinary superior, in so far as the disciplinary offense is based on the same facts. (2) However, the Military Service Court shall, in the case of decisions pursuant to 40, section 4, 42, no 4 and 5 and 45, rule that a reexamination of those findings be conducted, the correctness of which is called into question by the majority of its members, or, in the case of decisions by a Bundeswehr Disciplinary and Complaints Court division, by the chairman. This shall be stated in the grounds for the decision.

 35 Independence of the Disciplinary Superior (1) The responsible disciplinary superior decides exclusively on his/her own responsibility; nobody can order him/her if and how disciplinary measures may be imposed. (2) If the disciplinary superior imposes a disciplinary measure, higher ranking superiors, with the exception of cases pursuant to 45 and complaints, shall only be entitled to revoke this decision if the prerequisites of 46, section 2 are met. (3) If a disciplinary superior considers the committal of a disciplinary offense to be proven, but considers the imposition of a disciplinary measure inappropriate, no higher ranking superior shall be entitled to alter this decision. 92, section 3 and 96 shall remain unaffected. 36 Refraining from the Imposition of a Disciplinary Measure (1) If the investigations do not establish that a disciplinary offense has been committed, or if the disciplinary superior considers a disciplinary measure inadmissible or inappropriate, he/she shall inform the soldier about his/her decision, provided he/she has heard him/her beforehand. (2) The disciplinary superior may only investigate the case anew if new facts or new pieces of evidence are available. 37 Imposition of a Disciplinary Measure (1) A disciplinary measure may only be imposed after one night has passed, and after the soldier, pursuant to 32, section 5, has been heard. From the day the soldier is marched to the place of discharge onwards, a disciplinary measure may be imposed immediately. (2) The disciplinary measure shall be deemed imposed upon official disclosure of the disciplinary order to the soldier. His/her sense of honor shall be spared. (3) At the time of the disclosure, the disciplinary order shall be set down in writing. It shall include the time, place and facts of the disciplinary offense as well as the type and severity of the disciplinary measure imposed, in case of the strict confinement to quarters the stricter measure shall also be included. In the course of the imposition of the disciplinary measure, the soldier shall be served a copy of the disciplinary order. If the enforcement is suspended on probation, the soldier shall be informed thereof. (4) If the combined imposition of several disciplinary measures is permissible ( 22, section 2), they shall only be imposed simultaneously. (5) The disciplinary superior may neither be entitled to revoke or alter a disciplinary measure once he/she has imposed it nor may he/she leave it unenforced. 39, 49, section 3 and 56, section 3 shall remain unaffected.

 38 Guidelines for Determination of the Disciplinary Measure (1) Characteristics and seriousness of the disciplinary offense, its consequences, the extent of guilt, the personality, the motives and the conduct of the soldier so far, shall be considered in view of the type and severity of the disciplinary measures. (2) Generally, mild disciplinary measures shall initially be taken, and only in the case of renewed disciplinary offenses shall more severe disciplinary measures be resorted to. (3) Disciplinary arrest shall only be imposed if previous educational measures and disciplinary measures have failed to have their effect, or if the maintenance of the military order demands it. 39 Making Allowance in the Disciplinary Measure for Periods of Confinement Periods of confinement, completed by the soldier as provisional arrest or custody because of his/her offense, may be, upon due consideration, allowed for in such a way that the disciplinary measure is declared to be partly or wholly enforced. 40 Role of the Judge in the Imposition of the Disciplinary Arrest (1) Disciplinary arrest may only be imposed after the judge of the responsible, in an emergency the nearest, Bundeswehr Disciplinary and Complaints Court has approved of this. The judge shall agree to the intended disciplinary arrest, if he/she considers the disciplinary measure to be permissible and appropriate. No grounds for the decision may be stated. At the same time, the judge may order the immediate enforcement of the measure if this is necessary for the maintenance of the military order; in the case of such a decision, grounds shall be stated. If the judge has ordered the immediate enforcement, 37, section 1, subsection and 47, section 1 shall not apply. (2) In his/her request for approval the disciplinary superior shall indicate the intended duration of the disciplinary arrest. If he/she wants to simultaneously impose a confinement to quarters or a disciplinary fine, he shall also indicate the intended duration of the confinement to quarters or the amount of the disciplinary fine. He/she shall be obliged to state reasons for his/her request for immediate enforcement. The soldier shall also be heard on the subject of this request. The disciplinary superior shall enclose any recorded actions pursuant to 32 to the request. Furthermore, an excerpt from the disciplinary record or the personal files containing any official recognitions, imposed disciplinary measures and punishments and, if required, an explanation of the facts of the case, shall be enclosed. (3) If the judge refuses to give his/her approval to the disciplinary arrest, or if he/she only agrees to a shorter duration of the disciplinary arrest, he/she shall state the reasons for his/her decision. If he/she is of the opinion that judicial disciplinary punishment is appropriate, he may present the case to the instituting authority for further resolution. (4) In the cases of section 3, subsection 1, the disciplinary superior may be entitled to have recourse to the Bundeswehr Disciplinary and Complaints Court within one week after the issuing

of the judicial decision. If the Bundeswehr Disciplinary and Complaints Court considers the intended or a shorter disciplinary arrest to be permissible and appropriate, the court itself imposes the arrest. This decision is final. The soldier shall be heard prior to the decision; the hearing may also be conducted by the chairman outside the course of the proceedings. The soldier shall only be informed about the reasoning for the imposed disciplinary arrest. If the Bundeswehr Disciplinary and Complaints Court considers the disciplinary arrest to be inappropriate, the disciplinary superior decides whether he/she may want to impose a different disciplinary measure on the soldier. If the Bundeswehr Disciplinary and Complaints Court is of the opinion that judicial disciplinary punishment is required, it may present the case to the instituting authority for further resolution. (5) On board of a ship outside the territorial waters of the Federal Republic of Germany a disciplinary arrest shall be imposed before a judge has given his/her approval if a judge cannot be reached and the military discipline cannot be maintained in any other way. 42, no. 2, subsection 1 and 47, section 1 shall not apply. As soon as the ship has reached a port of the Federal Republic of Germany, the records shall be submitted to a judge without any delay. If the judge does not agree with the imposed disciplinary punishment, he/she thereby simultaneously revokes it. Section 1 to 4 shall apply analogously. 46, section 4 shall apply mutatis mutandis under the provision, that the prescribed period pursuant to 17, section 2 commences with the revocation of the disciplinary measure. (6) The judges and the Bundeswehr Disciplinary and Complaints Court may submit legal questions of fundamental importance to the Federal Administrative Court 18, section 4 Military Complaints Regulations shall apply mutatis mutandis. The prescribed period pursuant to 17, section 2 shall not run between the submission to and the decision of the Federal Administrative Court. 41 Disciplinary Superior and the Disciplinary Court Proceedings If the institution of judicial disciplinary proceedings is advisable, the disciplinary superior responsible shall bring about the instituting authoritys decision. 4. Complaints against Measures and Decisions of the Disciplinary Superior 42 Application of the Military Complaints Regulations The provisions of the Military Complaints Regulations shall apply subject to the following proviso to the complaints of soldiers and former soldiers against disciplinary measures and other measures, temporary arrest, and decisions taken by their disciplinary superiors, pursuant to this law: 1. 2. If the judge has ordered for immediate enforceability, complaints may be filed before the end of one night. A complaint shall suspend the enforcement of a disciplinary measure, if the soldier concerned has submitted it before its enforcement commenced. The soldier shall be informed about the time of the commencement in good time, normally when the

disciplinary measure is imposed. The enforcement of the measure shall not be delayed in the case of complaints against the disciplinary arrest, if the judge has ordered the immediate enforceability pursuant to 40, section 1, and in the case of other complaints. In all other aspects, the complaint shall have no suspensive effect. 3. A complaint shall be decided upon by the immediate disciplinary superior of the disciplinary superior who has imposed the appealed disciplinary measure or enforced the contested measure or decision. Complaints shall be permissible to the Bundeswehr Disciplinary and Complaints Court. The competent jurisdiction shall lie with the Bundeswehr Disciplinary and Complaints Court responsible for the area of command of the superior who imposed the disciplinary measure or enforced the contested measure or decision at the time of the reason for the complaint. The Federal Administrative Court shall have the power of decision on complaints against a measure or a decision of the Federal Minister of Defense or of the disciplinary superiors listed in 22 Military Complaints Regulations. The decision under appeal shall be, to the full extent, subject to an examination by the Military Service Court; the court simultaneously takes the decision required in this matter. 40, section 4, subsection 7 shall apply mutatis mutandis. Complaints against the withdrawal of an official recognition, against measures pursuant to 20 and against a disciplinary arrest shall only be permissible to the Bundeswehr Disciplinary and Complaints Court. The Federal Administrative Court shall have the power of decision on complaints against a measure or a decision of the Federal Minister of Defense or of the disciplinary superiors listed in 22 Military Complaints Regulations. No. 4, subsection 4 and 5 shall apply mutatis mutandis. The decision on the complaint shall not result in the imposition of a stricter disciplinary measure. If a disciplinary measure is mitigated or revoked in the course of a complaint, it shall be simultaneously decided, pursuant to 54, on the allowance for the enforcement and compensation for an impermissibly enforced disciplinary measure. If the Bundeswehr Disciplinary and Complaints Court revokes the disciplinary measure, because no disciplinary offense has been committed or proven, or because it considers the offense proven, but a disciplinary measure inappropriate, the disciplinary superior shall only be entitled to investigate the case anew, if significant new facts or pieces of evidence surface. If a disciplinary measure is revoked without being replaced by another disciplinary measure, the revocation thereof shall be disclosed in the same way as the imposition. If a decision on the complaints of a soldier against several disciplinary measures is taken simultaneously, the breaches of duty which underlie every disciplinary measure shall, in deviation from 18, section 2, each be punished as a single disciplinary offense. A disciplinary measure may also be mitigated or transformed into a milder disciplinary measure, if the soldier has already been discharged from service at the time the decision on

4.

5.

6. 7.

8.

9. 10.

11.

the complaint is being taken. 12. Disapprobatory statements which are combined with the establishment of a disciplinary offense ( 23, section 3, subsection 2) may only be contested in court together with that very establishment. 5. Reexamination 43 Revocation of a Disciplinary Measure in the Case of subsequent Criminal Proceedings or Proceedings for the Imposition of an Administrative Fine (1) If a simple disciplinary measure has been imposed unappealably, and if a court or authority subsequently imposes a punishment or a corrective measure for the same offense, or if an act, pursuant to 153a, section 1, subsection 5 or section 2, subsection 2 German Code of Criminal Procedure, can no longer be prosecuted as an offense, due to fulfillment of obligations and directives, the disciplinary measure shall be revoked upon request of the soldier, if its imposition after the closing of the criminal proceedings or the proceedings for an administrative fine would constitute a violation of 16, section 1. There shall be no revocation of a disciplinary arrest, if the prerequisites for an additional disciplinary measure have been at hand at the time of the imposition. (2) A disciplinary arrest shall be revoked, if its duration in combination with a term of imprisonment, imposed subsequently for the same act, exceeds three weeks. (3) A revocation shall be excluded, if the disciplinary measure has been noticeably allowed for in the criminal proceedings or in the proceedings for the imposition of an administrative fine. 44 Revocation or Alteration of a Disciplinary Measure for other Reasons (1) Every disciplinary superior shall be obliged to apply for a revocation of the disciplinary measure, if he/she is of the opinion that a disciplinary measure has been imposed on one of his/her subordinates, although this subordinate is innocent or no guilt could be proven; he/she may apply for such a revocation if he/she is of the opinion that a disciplinary measure has been inappropriate or impermissible pursuant to 16, section 1. The same shall apply to an application for mitigation of a disciplinary measure, if in the course of several breaches of duty, which have been punished as a single disciplinary offense, one of the prerequisites pursuant to subsection 1 hold true for one of these breaches of duty. (2) The disciplinary superior who has imposed the disciplinary measure, or in case of a change of command his/her successor, shall be obliged to file an application pursuant to section 1,second half of subsection 1. The same superior may also apply for a mitigation of a disciplinary measure imposed by him/her, if he/she subsequently is of the opinion that it was too harsh. (3) The soldier or former soldier shall be entitled to apply for the revocation of a disciplinary measure which is no longer appealable, if new facts or pieces of evidence have surfaced, which may lead to a revocation of the disciplinary measure. The established facts of a final judgement

made on the same case in the course of criminal proceedings or proceedings for the imposition of an administrative fine shall also constitute new facts, insofar as they deviate from those in the disciplinary order. 45 Proceedings for the Revocation or Alteration of a Disciplinary Measure (1) The Military Service Court shall decide on the application for revocation or mitigation of a disciplinary measure by means of a court ruling. (2) The provisions for complaints shall apply analogously to the proceedings. 20 Military Complaints Regulations shall be applied, provided no applications of a disciplinary superior pursuant to 44, section 1 or 2 is involved. (3) Those judges shall be excluded from the decision on the application, who have participated in the imposition of the disciplinary measure pursuant to 40, section 4, or in the appeal proceedings against the disciplinary measure. 46 Supervision (1) The next in rank disciplinary superiors shall supervise the disciplinary superiors subordinate to them in their exercise of disciplinary authority. (2) if: 1. 2. 3. 4. 5. Disciplinary measures that have been imposed by disciplinary superiors shall be revoked, They have been imposed by a disciplinary superior who had no cognizance Their type or severity is not provided for in the law A disciplinary measure has already been imposed on the soldier for the same disciplinary offense ( 18, section 1) The disciplinary superior has transgressed his/her disciplinary authority ( 28) The disciplinary superior had informed the soldier about his/her decision not to impose any disciplinary measures on him/her because of the disciplinary offense, and no significant new facts or pieces of evidence have surfaced subsequently ( 36) The disciplinary offense could no longer be subject to punishment due to lapse of time ( 17, section 2) The soldier has not been granted a previous hearing ( 32, section 5, subsection 1) Upon disclosure, the disciplinary order has not been laid down in writing or did not cover the prescribed contents ( 37, section 3, subsection 1 and 2) The disciplinary arrest has been imposed without the approval of the judge ( 40, section 1)

6. 7. 8. 9.

(3) The next in rank disciplinary superiors shall be responsible for the revocation of disciplinary measures. 42, no. 9 shall apply. (4) The disciplinary superior responsible shall examine whether the replacement of a revoked disciplinary measure by a new disciplinary measure may be permissible and appropriate. 42, no. 7 shall apply mutatis mutandis. (5) The disciplinary superiors shall report reasons for revocation known to them to the authority responsible for the revocation of the disciplinary measure. 6. Enforcement 47 Enforceability of the Disciplinary Measures (1) A disciplinary measure imposed by a disciplinary superior shall only be enforced if the soldier, on the day following the imposition, has been given sufficient time and opportunity to file a complaint and chose not to make use of that opportunity. Prior to this point the soldier shall not be entitled to waive his/her right to complain. (2) Disciplinary measures imposed by decision of a Military Service Court shall become effective and enforceable when the judgement is final ( 125). 48 Enforcing Superior (1) Simple disciplinary measures shall be enforced by the immediate disciplinary superior. If the disciplinary measure is imposed by a different unit/activity, this unit/activity shall request the immediate disciplinary superior to enforce the measure. Other agencies shall only be requested to enforce the disciplinary measure, if the soldier is not within the area of command of the immediate disciplinary superior and the enforcement must not be delayed. (2) Upon request of the disciplinary attorney of the armed forces, the immediate disciplinary superior or other agencies (section 1) shall also enforce simple disciplinary measures that have been imposed in the course of disciplinary court proceedings. 49 Suspension, Delay and Interruption of Enforcement (1) In the case of the imposition of a simple disciplinary measure, the enforcement may be suspended for 5 months, to give the soldier the opportunity to prove himself/herself while on probation. Only once shall the enforcement be suspended on probation and only in those cases in which no or only minor punishments and disciplinary measures have been previously imposed and if a positive educational outcome can be expected. The suspension of the enforcement may be combined with an educational measure. (2) The prescribed period shall commence on the day the disciplinary measure has become unappealable. If, by the end of the probation period, no punishment or disciplinary measure has been unappealably imposed on the soldier for an act committed during the probation period, the disciplinary measure shall be remitted. If this is not the case, the disciplinary measure shall be

enforced. (3) Above and beyond this, the enforcement may only be delayed or interrupted for compelling reasons. 50 Enforcement of Reprimand and Severe Reprimand (1) The imposition of the reprimand constitutes its enforcement.

(2) The severe reprimand shall be deemed enforced upon announcement in front of the servicemen of the unit of the soldier from the rank of the soldier in question upwards. The announcement shall be restricted to the information that a severe reprimand has been imposed on the soldier. 51 Enforcement of Disciplinary Fines (1) The disciplinary fine may be deducted from the monthly emoluments or the military pay or, if the service period has ended, from the mustering-out pay or the retirement pay. The enforcement shall commence on the date prescribed for the deduction or the payment. (2) The enforcing superior may allow for installments.

(3) Disciplinary fines, which have not been paid within the prescribed period, shall be collected pursuant to the Administrative Enforcement Act. (4) For the deduction and the collection of a disciplinary fine, the monthly emoluments, the military pay, the mustering-out pay and the retirement pay shall not be subject to the restrictions that apply to attachment. However, the soldier or the former soldier shall be left the necessary means to support himself/herself and his/her family and to meet any other statutory maintenance obligations. 52 Enforcement of Confinement to Quarters (1) The confinement to quarters shall be enforced on consecutive days. This period shall be ordered. In case of the strict confinement to quarters, type and duration of the stricter measures, imposed pursuant to 25, section 1, subsection 2 and 3, shall be ordered additionally. (2) The confinement to quarters shall be enforced from the beginning of the first day to the expiry of the last day of the ordered period. (3) For the purpose of supervision, the soldier may be ordered to report to the superior in reasonable intervals. (4) For compelling reasons, the soldier may, on one or several days, be exempted for a certain time from the ordered restrictions. The time of the exemption shall be allowed for in the period of confinement to quarters.

 53 Enforcement and Execution of Disciplinary Arrest (1) The enforcement of the disciplinary arrest shall commence with the deprivation of liberty.

(2) During the execution of this measure, the soldier shall be furthered in his/her training. As a rule, he/she shall serve his/her duties; participation may be restricted to certain types of service or to a certain time. If participation in military duties is not advisable due to the character of the soldier, the type of service, the brevity of the disciplinary arrest or for other reasons, the soldier shall, insofar possible, be occupied in a way which furthers his/her training. Insofar as the soldier does not participate in military duties or is occupied otherwise, he/she may be called upon to do works within the official accommodation and facilities, which are appropriate to the educational purpose and his/her abilities. (3) The instructions pursuant to section 2 shall be ordered by the implementing officer.

(4) The Federal Ministry of Defense shall be authorized to issue, by a statutory order, provisions governing the execution of the disciplinary arrest which deal with calculation of the duration of the confinement, the type of accommodation, the treatment, the occupation, the granting and the deprivation of privileges, contacts with the outer world and order and security during the execution of the arrest. 54 Compensation in the Case of Subsequent Revocation of an Enforced Disciplinary Measure (1) If, subsequently, a disciplinary measure is partly or wholly revoked, the soldier or former soldier shall be compensated. This compensation shall take the form of one day leave for every day the measure has been impermissibly executed, or, if leave cannot be granted any longer due to termination of the service status, a compensation in money which corresponds with the compensation pursuant to 7, section 3 Prosecution Compensation Act of 8 March 1971 (BGB1 I p 157), as amended. (2) If, subsequently, a confinement to barracks is partly or wholly revoked, the soldier or former soldier shall be compensated with one day leave for every day off duty and one day leave for every two days on duty during the execution and, insofar as leave cannot be granted any longer due to termination of the service status, a compensation in money according to section 1, subsection 2. (3) If a disciplinary fine is imposed instead of a disciplinary arrest or a confinement to quarters, it shall be declared to be enforced, insofar as the soldier is entitled to claim compensation. (4) If a disciplinary fine is subsequently revoked, it shall be reimbursed; if it is mitigated, the difference between the original and the mitigated fine shall be reimbursed. (5) (6) (7) In the case of a revocation of a severe reprimand, 42, no. 9 shall apply mutatis mutandis. Section 1 to 5 shall also apply to the cases pursuant to 22, section 2. The Military Service Court which has partly or wholly revoked the disciplinary measure

shall decide on the compensation by a final court ruling. Above and beyond, the disciplinary superior who has partly or wholly revoked the disciplinary measure shall decide on the compensation; 42 shall apply mutatis mutandis. 55 Improvised Measures for Disciplinary Arrest (1) In the case of disciplinary arrest, improvised measures shall be permissible, if, in consequence of the nature of the assignment of the unit or for other reasons, no disciplinary arrest room is available and the enforcement, for service reasons, cannot be postponed. (2) The improvised measures shall be converted into ordinary disciplinary arrest, as soon as the special reasons for the improvised measures cease to apply. (3) As an improvised measure, the soldier is instructed to stay in the guardhouse or, if on board of a ship, in a suitable room when being off duty. The enforcing superior shall decide to what extent the soldier may be called upon to perform services during the time of the arrest. 56 Enforcement of Disciplinary Fines and Disciplinary Arrest in Connection with the Day of Discharge (1) A disciplinary fine may also be enforced after the day of discharge.

(2) If a disciplinary arrest can no longer be enforced with regard to the day of discharge, 42, no. 2, subsection 1 and 47, section 1 shall not apply, provided the judge has ordered immediate enforceability. Reasons for this decision shall be stated. The day of discharge shall be postponed for the duration of the disciplinary arrest still to be served. (3) The enforcing superior shall refrain from the enforcement, if a negative impact on the discipline is not to be feared. 57 Limitation of Enforcement After 6 months have elapsed, simple disciplinary measures shall no longer be enforced. The prescribed period shall commence on the day the disciplinary measure has become unappealable. The prescribed period shall be deemed complied with, if the enforcement commences before its lapse. Chapter III Disciplinary Court Proceedings 1. Judicial Disciplinary Measures 58 Types of Judicial Disciplinary Measures (1) Judicial disciplinary measures against regular soldiers and temporary-career volunteers are:

1. 2. 3. 4. 5.

Reduction of emoluments Debarment from promotion Reduction in pay grade Demotion Disciplinary discharge

(2) Judicial disciplinary measures against retired soldiers and former soldiers who are deemed retired soldiers ( 1, section 3) are: 1. 2. 3. 4. Cut in pension Reduction in pay grade Demotion and Deprivation of pension

If the former soldiers are at the same time members of the reserve or former soldiers other than conscripts who may still be called upon to furnish services, only the judicial disciplinary measures listed in subsection 1 shall be imposed on them. (3) Judicial disciplinary measures against members of the reserve or former soldiers other than conscripts who may still be called upon to furnish services are: 1. 2. Demotion Deprivation of Rank

(4) For the same disciplinary offense, only a reduction of emoluments and a debarment from promotion may be imposed simultaneously. They shall specifically be imposed simultaneously if it becomes clear that a debarment from promotion will have no consequences for the further service career of the soldier; 16, section 1 shall not apply. Besides or in place of the cut in pension a cut in compensation ( 38 Military Pensions Act) may be imposed. Above and beyond, only one judicial disciplinary measure shall be imposed for the same disciplinary offense. (5) For any conduct which, pursuant to 17, section 3 and 23, section 2, no 2 Legal Status of Military Personnel Act, is deemed a disciplinary offense, the only judicial disciplinary measures which may be imposed on retired soldiers or former soldiers who are deemed retired soldiers are demotion or deprivation of pension. (6) (7) The Military Service Courts shall also be entitled to impose simple disciplinary measures. 38 and 39 shall also apply to disciplinary court proceedings.

 59 Reduction of Emoluments The reduction of emoluments shall entail the fractional reduction of the pertinent monthly salary by a minimum of one twentieth and a maximum of one fifth for the duration of six months to five years. If the soldier is entitled to benefits accruing from a previous period of service, these shall not be affected by the reduction of emoluments. 60 Debarment from Promotion (1) For the duration of the debarment from promotion the soldier shall not be promoted to a higher rank. He shall, furthermore, not be assigned to a billet in a higher pay grade. (2) The debarment from promotion shall be imposed for a minimum of one year and a maximum of four years. The period shall be calculated on the basis of complete months. 61 Reduction in pay grade For a soldier, a retired soldier, or a former soldier deemed to be retired soldier (1, section 3), whose rank is listed in two different pay grades, a reduction into the lower pay grade of his/her rank shall be permissible. With the reduction in pay grade, the soldier shall lose all privileges deriving from his/her previous pay grade. His/her entitlement to emoluments and retirement pensions shall be based on the pay grade he/she is reducted to. 62, section 3 shall apply mutatis mutandis. 62 Demotion (1) For officers, demotion by one or several ranks shall be permissible to the lowest rank of their particular officer's career. This restriction shall also apply to officers on whom the disciplinary measures pursuant to 58, section 2 and 3 may be imposed. For noncommissioned officers who are professional soldiers and for retired professional soldiers who carry the rank of a noncommissioned officer, a demotion down to the rank of a staff sergeant (OR-6) shall be permissible. Above and beyond, it shall be permissible without restriction. (2) With the demotion, the soldier shall lose all privileges deriving from his/her previous rank. He/she shall be set back to the rank and, if this rank is divided in two pay grades, to the pay grade determined by the Military Service Court. His/her entitlement to emoluments and retirement pensions shall be based on the rank he/she is reducted to. (3) The soldier shall not be promoted earlier than three years after the judgement has become final. 60, section 1, subsection 2 shall apply mutatis mutandis. For special reasons, the court may reduce the prescribed period to two years. 63 Disciplinary Discharge (1) The period of service shall be deemed terminated upon the disciplinary discharge.

Disciplinary discharge also means the loss of the right to emoluments, vocational advancement and retirement pensions, as well as loss of rank and of the privileges deriving from this rank. The obligation to do compulsory military service shall not be affected by the disciplinary discharge. (2) For the duration of six months, the discharged soldier shall be entitled to a support contribution amounting to 50% of the emoluments he/she is entitled to at the time the decision becomes unappealable; a retention of emoluments pursuant to 126, section 2 shall remain unaffected. If the soldier would have been entitled to financial benefits only for a specific period of time, the support contribution shall only be granted for this period of time. (3) The granting of the support contribution may be partly or wholly excluded in the judgement, if the convicted person is not worthy of it or not needy given the known circumstances. In the judgement the granting may be extended for a period longer than six months, insofar as this is necessary to avoid an undue hardship; the convicted person shall prove to the satisfaction of the court that the prerequisites for an undue hardship are present. 109 shall apply to the payment of the support contribution. (4) In cases of minor severity, the court may exclude the loss of rank, but order for a reduction of rank, without being bound to the restrictions listed in 62, section 1, subsection 1 to 3. 64 Cut in Pension The cut in pensions is the fractional reduction of the pertinent monthly retirement pay. For the cut in pensions, 59 shall apply mutatis mutandis. This reduction shall remain unaffected by the application of suspension and reduction regulations according to the Military Pensions Act. The compensation may be cut down to half, at the maximum. 65 Deprivation of Pension (1) Upon deprivation of pension, the soldier shall lose all his/her rights and privileges as a retired soldier. It is imposed under the prerequisite, that a disciplinary discharge would have been justified, if the retired soldier was still an active service member. Deprivation of pension also means the loss of the right to any compensation which still has not been paid and of the right to the surviving dependents' pension, as well as loss of rank and of the privileges deriving from this rank. 63, section 4 shall apply mutatis mutandis. (2) For the duration of six months, the soldier deprived of his/her right to pensions shall be entitled to a support contribution amounting to 70% of the retirement pay he/she is entitled to at the time the decision becomes unappealable; a retention of retirement pay pursuant to 126, section 3 shall remain disregarded. 63, section 3 shall apply mutatis mutandis. 66 Deprivation of Rank The deprivation of rank shall constitute the loss of his/her rank and of all privileges deriving from it. It is imposed under the prerequisite, that a disciplinary discharge would have been

justified, if the member of the reserve or the former soldier other who is not bound to do compulsory military service nay longer, but who still may be called upon to furnish services was still an active service member. 63, section 1, subsection 3 shall apply mutatis mutandis. 67 Disciplinary Measures against former Soldiers who are deemed Retired Soldiers (1) For former soldiers who are deemed retired soldiers ( 1, section 3), the cut in pension consists of a reduction of the transitional grant, the transition allowances, the equalization benefits or the support contribution. Besides or in place of the reduction of the transition allowances or the equalization benefits, a reduction of the transitional grant may be imposed. (2) 59 shall apply mutatis mutandis to the reduction of the transition allowances, the equalization benefits or the support contribution. The transitional grant may be cut down to half, at the maximum. (3) As a consequence of a demotion, the rights deriving from a certificate of integration or a certificate of admission shall cease to exist, if the former soldier has not yet been employed in the public service. Above and beyond, the entitlement to vocational advancement shall remain unaffected. (4) Upon deprivation of pension, the former soldier shall lose his/her right to any transitional grant which has not been paid yet, as well as his/her right to transition allowances, equalization benefits, support contribution and vocational advancement. He/she shall furthermore lose his/her rank and all privileges deriving from it. 63, section 4 shall apply mutatis mutandis.

2. Military Service Courts 68 Definition of Military Service Courts The Bundeswehr Disciplinary and Complaints Court ( 69 to 79) and the Federal Administrative Court ( 80) are the military courts for disciplinary court proceedings against soldiers and for proceedings dealing with the complaints filed by soldiers (Military Service Courts). a) Bundeswehr Disciplinary and Complaints Court 69 Establishment (1) By a statutory order, the Federal Minister of Defense shall establish the Bundeswehr Disciplinary and Complaints Courts and determine their seat and their area of competence according to the pertinent requirements of the judicature of the Bundeswehr and in conformity with its structure. (2) Within the Bundeswehr Disciplinary and Complaints Court, divisions are set up (Bundeswehr Disciplinary and Complaints Court divisions). The Federal Ministry of Defense

may establish, by a statutory order, Bundeswehr Disciplinary and Complaints Court divisions seated outside the seat of the Bundeswehr Disciplinary and Complaints Court, if this is necessitated by the pertinent requirements of the judicature in the Bundeswehr and by the distance between the units/agencies and the court; in this course it may also determine the area of competence of the external Bundeswehr Disciplinary and Complaints Court divisions. (3) If, in the course of a change of the structure of the Bundeswehr or in the interest of the proper administration of justice, the courts are reorganized, the Federal Ministry of Defense may decide, by a statutory order, that pending proceedings be transferred to another Bundeswehr Disciplinary and Complaints Court or another Bundeswehr Disciplinary and Complaints Court division, provided this serves the pertinent course of the proceedings. (4) The Bundeswehr Disciplinary and Complaints Courts shall be within the area of competence of the Federal Ministry of Defense. (5) At each Bundeswehr Disciplinary and Complaints Court a central court office and at each Bundeswehr Disciplinary and Complaints Court division a court office shall be set up. The central court office of a Bundeswehr Disciplinary and Complaints Division shall simultaneously perform the tasks of a Bundeswehr Disciplinary and Complaints Division seated at the seat of the court. 70 Responsibility (1) That Bundeswehr Disciplinary and Complaints Court shall be responsible, which has been set up for the area of command to which the unit/agency of the soldier, at the time of the institution of the proceedings, belongs. (2) For former soldiers that Bundeswehr Disciplinary and Complaints Court shall be responsible to which the military district is assigned in which the responsible recruiting agency is seated or, if the former soldier is no longer subject to control under the Compulsory Military Service Act, the permanent residence of the soldier is located. If the former soldier has no residence within the purview of this law, the Bundeswehr Disciplinary and Complaints Court responsible for the seat of the Federal Ministry of Defense shall have responsibility. (3) If there is no place of jurisdiction, or if it is questionable or contentious or if there are more than one places of jurisdiction in the course of connected disciplinary offenses committed by several soldiers, the Federal Administrative Court shall, upon request by a Bundeswehr Disciplinary and Complaints Court or another authority involved in the proceedings, determine the responsible court by a court ruling. 71 Composition (1) The Bundeswehr Disciplinary and Complaints Court shall comprise the President and further judges in the required number. (2) Honorary judges shall participate in the work of the Bundeswehr Disciplinary and Complaints Court.

(3) Judges may be commissioned to work at the Bundeswehr Disciplinary and Complaints Court. They shall not preside over an enlarged bench ( 76). (4) A judge at a Bundeswehr Disciplinary and Complaints Court may be assigned a further justiceship at another Bundeswehr Disciplinary and Complaints Court. 72 Presidential Constitution (1) At each Bundeswehr Disciplinary and Complaints Court an executive board shall be formed. (2) The executive board shall comprise the President with the function of a chairman and four elected justices. (3) At the seat of a Bundeswehr Disciplinary and Complaints Court the president shall choose a division over which he/she presides. (4) The decisions taken by the executive office may be subject to alteration in the course of the official year, if this is necessitated because of a change in the structure of the Bundeswehr. (5) The provisions of the second title of the Courts Constitution Act shall apply mutatis mutandis, as long as this law does not dictate otherwise. 73 Supervision The president shall supervise the judges, civil servants, and employees. 74 Honorary Judges (1) The honorary judges shall be appointed for one calendar year.

(2) Commanders of the units and heads of the agencies for which the particular Bundeswehr Disciplinary and Complaints Court has jurisdiction shall, if possible, nominate three times the required honorary judges to the Bundeswehr Disciplinary and Complaints Court. Furthermore, they shall nominate, if possible, three times the required honorary judges from careers in the medical service, who are physicians or dentists. Furthermore, the selection and induction offices shall nominate the required number of members of the reserve. The honorary judges shall be appointed separately, according to their rank categories. Those soldiers or former soldiers shall not be appointed, who, during the current or the previous calendar year, have been finally sentenced to a term of imprisonment in the course of criminal proceedings or to a judicial disciplinary measure in the course of disciplinary court proceedings or on whom, during the current or the previous year, a disciplinary arrest has been unappealably imposed. Furthermore, those soldiers or former soldiers shall not be appointed, whose application for recognition as conscientious objector has not yet been finally decided on. (3) Two judges, selected by the president, shall distribute those nominees not drawn by the Federal Administrative Court ( 80) to the Bundeswehr Disciplinary and Complaints Court

divisions. In a public session, the chairman of the Bundeswehr Disciplinary and Complaints division draws the required number of honorary judges of the individual rank categories as well as the required number of members of the medical service and, separately and in the order of the draw, enters them into the list of the honorary judges of the Bundeswehr Disciplinary and Complaints division. The clerk of the court shall record the draw. (4) Soldiers or former soldiers who have been appointed in contradiction to section 2, subsection 5 and 6, or who, between the time of the nomination and the draw, have been affected by one of the causes of impediment listed in section 2, subsection 5 and 6, shall be disregarded in the draw or be deleted by the chairman of the Bundeswehr Disciplinary and Complaints Court division from the list of the honorary judges. The decision to disregard or delete the name shall be incontestable. (5) In accordance with the sequence of the list of the honorary judges, the honorary judges shall be requested to attend the individual sessions. Deviations from this sequence shall only be permitted for compelling reasons and with the approval of the chairman of the Bundeswehr Disciplinary and Complaints Court division; military service shall only be deemed a compelling reason, if its performance by the particular honorary judge is of outstanding importance. The reason for the deviation and the approval of the chairman shall be placed on the record. If there is a deviation from the list of honorary judges, the judge who has been passed over shall be requested to attend the next session. (6) If the appointment of new honorary judges becomes necessary, they shall only be appointed for the remainder of the calendar year. (7) Only those shall be called upon to serve as honorary judges who have performed military service for a minimum period of six months. (8) For the purpose of the calling up of deputies in case a honorary judge is unexpectedly prevented from attending a session, or if a trial is fixed at short notice because of the impending discharge of the soldier, a list of honorary judges may be drawn up who are assigned to units or agencies, which are located at the seat or in the vicinity of the Bundeswehr Disciplinary and Complaints Court division. Section 1 to 7 shall apply analogously. 75 The Bench (1) A Disciplinary and Complaints Court division in trial shall have one judge as a chairman and two honorary judges. Outside the main trial, the chairman shall have the sole power of decision, unless, pursuant to this law, the Bundeswehr Disciplinary and Complaints Court has to decide. (2) One honorary judge shall be of the same rank category as the soldier. In the case of proceedings against medical officers, he/she furthermore shall be, if possible, a physician or a dentist, if violations against medical duties are the subject of the proceedings. The other honorary judge shall be a staff officer and be of a rank superior to that of the soldier. In the case of proceedings against officers from the rank of a colonel, or equivalent, upwards, the other honorary shall hold the rank of a general.

(3) The honorary judges shall be members of the same Service as the soldier, but the two judges shall not be a member of the same battalion or equivalent unit or the same agency. An honorary judge shall not be the disciplinary superior of the other honorary judge. In proceedings against former soldiers for a disciplinary offense, one of the honorary judges shall be member of the reserve; he/she shall belong to the same rank category as the former soldier. (4) If a Bundeswehr Disciplinary and Complaints Court division has no honorary judges pursuant to section 2 and 3 at its disposal, soldiers shall be appointed honorary judges who have already been drawn as honorary judges for another division of the Bundeswehr Disciplinary and Complaints Court. For this purpose, a special draw shall be held; 74, section 3, 5 and 6 shall apply mutatis mutandis. The justiceship as an honorary judge at another Bundeswehr Disciplinary and Complaints Court division shall remain unaffected. 76 Enlarged Bench Prior to the setting down of the case for trial, the chairman may order that two additional judges be called upon, if required because of the dimensions or the significance of the matter. 77 Exclusion from Justiceship (1) 1. 2. (1) A judge or an honorary judge shall excluded by law from exercising his/her justiceship: In cases in which a judge is excluded from justiceship in criminal proceedings If he/she a) has been involved in the act, b) has been involved in criminal proceedings or proceedings for the imposition of an administrative fine instituted against the soldier for the same offense, c) has played a part in earlier appeal proceedings concerning the same case, in proceedings directed at the revocation or alteration of a simple disciplinary measure or in proceedings concerning the same case pursuant to 40, section 4. (2) 1. A Honorary judge shall also be excluded, if he/she: Has exercised disciplinary authority in his/her function as disciplinary superior in the same matter, has been involved in the disciplinary investigations or participated as a spokesperson, or has been involved in the disciplinary court proceedings against the soldier, Is the disciplinary superior of the soldier, Is a member of the same battalion or equivalent unit or the same agency as the soldier.

2. 3.

 78 Defaulting Honorary Judges (1) An administrative fine may be imposed on honorary judges who, without a sufficient excuse, do not appear at the sessions in time or evade their duties in other ways. Furthermore, the costs accrued caused by their conduct may be imposed on them. 2) The power of decision shall lie with the chairman. The honorary judge may appeal against the imposition of the administrative fine and the accrued costs at the Bundeswehr Disciplinary and Complaints Court. An appeal shall be filed within two weeks from the service of the decision. The Bundeswehr Disciplinary and Complaints Court shall have the final decision. 79 Suspension and Expiration of the Office as a Honorary Judge (1) A honorary judge, against whom disciplinary court proceedings have been instituted, or against whom public charges have been brought because of a wilfully committed criminal offense, or for whom an order imposing punishment has been requested or who is forbidden the performance of his/her duty pursuant to 22 Legal Status of Military Personnel Act, shall not be called upon to exercise his/her office for the duration of these proceedings or for the duration of the ban. An honorary judge who has filed a request for recognition as a conscientious objector shall not exercise his/her office until the procedure for allowance has come to a final decision, or until his/her day of discharge, if his/her request is approved. (2) 1. 2. 3. 4. 5. The office of an honorary judge shall expire, if: He/she has been finally sentenced to a term of imprisonment He/she is sentenced to a judicial disciplinary measure in the course of disciplinary court proceedings, or if a disciplinary arrest is unappealably imposed on him/her He/she is no longer a member of the unit or agency for which the particular Bundeswehr Disciplinary and Complaints Court has responsibility He/she acquires the rank of another rank category The service period or the period of compulsory military service ends.

(3) If the honorary judge, in the cases pursuant to section 2, no 3, is no longer assigned within the area of competence of the Bundeswehr Disciplinary and Complaints Court, his/her office shall expire at the end of the month after he/she was notified of the reassignment, unless he/she has objected to the expiration of the office as a honorary judge. b) Federal Administrative Court 80 Military Affairs Division, Establishment, Composition, Responsibility (1) At the Federal Administrative Court, Military Affairs Divisions are set up for matters of military complaints and military disciplinary matters. 4 and 11, section 2 to 5 Code of

Administrative Court Procedure shall apply to the organization of the court system, as long as this law does not dictate otherwise. (2) Only those judges shall be allowed to participate in the Military Affairs Divisions, who have been nominated for this purpose by the Federal Ministry of Justice. This nomination shall be effected when the Federal Administrative Court transfers the justiceship. Upon suggestion or with the approval of the executive office of the Federal Administrative Court it may also be effected or cancelled later. By decision of the executive office, judges sitting in other divisions may also be ordered to be temporary members of a Military Affairs Division, if this is without a quorum because its members are prevented from attending the sessions. (3) The Military Affairs Divisions shall decide with a bench of three judges and two honorary judges, in the case of decisions outside the main trial with a bench of three judges. 75, section 2 and 3 shall apply. (4) The honorary judges shall be drawn, prior to the distribution of the soldiers or former soldiers to the Bundeswehr Disciplinary and Complaints Court divisions, by a judge of the Military Affairs Division from the pool of soldiers or former soldiers who have been nominated honorary judges at the Bundeswehr Disciplinary and Complaints Court. Soldiers who do compulsory military service shall be appointed for the time of their compulsory military service, other or former soldiers for a period of two years. 74, section 3, subsection 2 and 3, section 4 to 8 as well as 77 to 79 shall apply analogously. 3. Disciplinary Attorneys for the Armed Forces 81 Organization and Tasks (1) The Federal Ministry of Defense shall appoint civil servants as disciplinary attorneys for the armed forces at the Bundeswehr Disciplinary and Complaints Courts, for the duration of their full-time employment. They shall be eligible for the office of a judge according to the Law on the Judiciary or meet the requirements of 110, subsection 1 Law on the Judiciary. (2) The disciplinary attorneys for the armed forces shall represent the instituting authorities subordinate to the Federal Minister of Defense in disciplinary court proceedings. They shall also represent the Federal Minister of Defense, if the Minister himself/herself constitutes the instituting authority. They shall comply with the requests of the instituting authority. Their responsibility shall be the enforcement of disciplinary measures which have been imposed in the disciplinary court proceedings. (3) A Bundeswehr Disciplinary Attorney shall be appointed to the Federal Administrative Court; at this court, he/she shall represent the supreme authority and the other instituting authorities at every stage of the proceedings. The Bundeswehr Disciplinary Attorney reports to the Federal Minister of Defense and is bound exclusively by the minister's directives. Section 1, subsection 2 shall apply to him/her and his/her full-time employees of the administrative class. The disciplinary attorneys for the armed forces shall report to the Bundeswehr Disciplinary Attorney. (4) Upon request of the Bundeswehr Disciplinary Attorney, the instituting authority shall be

obliged to institute disciplinary court proceedings, if the decision will presumably be a disciplinary discharge, a deprivation of pension, a deprivation of rank or a demotion, and if the instituting authority has declined, prior to this, the request of a disciplinary attorney for the armed forces for institution of the proceedings. At his/her request, the Bundeswehr Disciplinary Attorney shall be presented files that could be of significance for the judgement evaluation as well as the personal files. Section 3, subsection 2 and 98, section 1 and 2 shall remain unaffected. 4. General Provisions Concerning Disciplinary Court Proceedings 82 Proceedings against Former Soldiers (1) In the case of pending case disciplinary court proceedings against a soldier who is retiring or whose term of military service would otherwise end without him/her losing his/her rank, the continuation of this proceedings shall not be affected by the termination of the service status. (2) No compensatory payment or transitional grant shall be paid before a final judgement has been reached in the proceedings. Upon request of the soldier, the disciplinary attorney for the armed forces may declare the complete or partial payment of the transitional grant or the compensatory payments permissible at an earlier time. The decision of the disciplinary attorney for the armed forces shall be served on the soldier. If the disciplinary attorney for the armed forces rejects the request, the soldier may, within one month after the service, request a decision by the Bundeswehr Disciplinary and Complaints Court. The Bundeswehr Disciplinary and Complaints Court shall have the final decision. If the proceedings are pending at the Federal Administrative Court, the Bundeswehr Disciplinary Attorney shall take the place of the disciplinary attorney for the armed forces and the Federal Administrative Court the place of the Bundeswehr Disciplinary and Complaints Court. (3) Against a former soldier, disciplinary court proceedings may only be instituted because of a disciplinary offense committed prior to the termination of service status or because of an act which is considered a disciplinary offense pursuant to 23, section 2 Legal Status of Military Personnel Act. 83 Suspension of Disciplinary Court Proceedings (1) The disciplinary court proceedings shall be suspended, if for the same facts of the case that constituted the case for the disciplinary court proceedings a public lawsuit has been instituted in the course of criminal proceedings. The proceedings shall be resumed, if the inquiry into the facts is certain, or if the case cannot be heard in the course of the criminal proceedings because of reasons that derive either from the soldier or from his/her conduct. (2) The disciplinary court proceedings shall continue, at the latest, after conclusion of the proceedings that have led to the suspension. (3) The disciplinary court proceedings may be suspended, if, in the course of other legally prescribed proceedings, a matter has to be decided on, the judgement of which is of significant importance for the decision in the disciplinary court proceedings. Section 1, subsection 2 and

section 2 shall apply mutatis mutandis. (4) The soldier shall be entitled to request a decision by the Bundeswehr Disciplinary and Complaints Court against a suspension by the instituting authority. The Bundeswehr Disciplinary and Complaints Court shall have the final decision. 84 Binding Effect of Facts Established in other Decisions (1) The facts established in the final judgement of criminal proceedings or proceedings for the imposition of an administrative fine shall be binding on the instituting authority, the disciplinary attorney for the armed forces and the Military Service Court in the course of disciplinary court proceedings, in so far as they are based on the same facts. However, the Military Service Court shall rule that a reexamination of those findings be conducted, the correctness of which is called into question by the majority of its members, or, in the case of a normal bench at a Bundeswehr Disciplinary and Complaints Court division, by the chairman. This shall be stated in the grounds for the decision. (2) The facts established in other legally prescribed proceedings shall have no binding effect, but they may constitute the basis for a judgement in disciplinary court proceedings without being reexamined. 85 Incapacity of the Soldier to Stand Trial (1) The mere fact that the soldier is incapable to stand trial or cannot exercise his/her rights, due to absence, shall not impede the institution or the resumption of disciplinary court proceedings. (2) At request, the court of guardianship2 shall provide, as a legal representative, to exercise the rights of the soldier in the proceedings: 1. 2. A custodian, in the case of the soldier being incapable to stand trial. A curator absentis for a soldier who cannot exercise his/her rights due to absence.

The custodian or curator absentis shall be a soldier. 16, section 2 Administrative Proceedings Act shall apply mutatis mutandis. 86 Witnesses and Experts (1) The swearing-in of witnesses and experts shall only be permissible, if it is necessary for the preservation of evidence or with regard to the significance of the statement or as a means to enforce a correct testimony. (2)
2

By way of legal aid, only the local courts, apart from the Bundeswehr Disciplinary and

Starting 1. September 2009: Guardianship court for adult soldiers, family court for armed forces personnel who are still minors

Complaints Courts within the Federal Republic of Germany, may be requested to hear witnesses and experts under oath. A request directed to the Bundeswehr Disciplinary and Complaints Court shall be met by a judge. 87 Impermissibility of Arrest It shall impermissible to arrest the soldier during the disciplinary court proceedings. 88 Expert Opinion on the Mental State Having heard an expert and the counsel of the defense, the Bundeswehr Disciplinary and Complaints Court shall be entitled to refer the soldier to a public psychiatric hospital, so that an expert opinion can be furnished, or to a Bundeswehr hospital for observation. For soldiers who do not have a defense counsel, a defense counsel shall be appointed. Committal to a public psychiatric hospital or a Bundeswehr hospital may not exceed a total period of six weeks. 89 Summons to Appear Soldiers shall be ordered to appear at the trial and other hearings, also when they are witnesses or experts. Upon announcement of the date, the soldier shall be served the summons. Former soldiers and other persons shall be summoned directly. 90 Legal Defense (1) The soldier may have the assistance of a defense counsel at any stage of the proceedings. Upon request or ex officio, the chairman of the Bundeswehr Disciplinary and Complaints Court division shall appoint a defense counsel for the soldier, if the participation of a defense counsel appears to be necessary and the soldier has not yet chosen a defense counsel. If a soldier is incapable to stand trial, cannot exercise his/her rights due to absence or is a minor, a defense counsel shall automatically be appointed for him/her. (2) Eligible as defense counsel at the Bundeswehr Disciplinary and Complaints Court shall be attorneys and other persons who are eligible for the office of a judge according to the Law on the Judiciary or who meet the requirements of 110, subsection 1 Law on the Judiciary, and soldiers. Only those persons shall be admitted to the Federal Administrative Court as defense counsel who are eligible for the office of a judge according to the Law on the Judiciary, or who meet the requirements of 110, subsection 1 Law on the Judiciary. (3) The defense counsel shall have the right to inspect the files to the same extent as the soldier. 91 Supplementary Provisions (1) As a supplement to the provisions of this law on the disciplinary court proceedings, the provisions of the Courts Constitution Act, especially on the courtroom guard, official language in

court, counseling and voting, as well as the provisions of the German Code of Criminal Procedure and 55a of the Code of Administrative Court Procedure shall apply, unless this is excluded by the nature of the disciplinary court proceedings in question. Instead of the period of one week, as laid down in these laws, a period of two weeks shall apply in each case. (2) The Military Service Courts shall decide by a simple majority. 5. Institution of the Proceedings 92 Preliminary Investigations (1) For the preparation of its decision as to whether institute disciplinary court proceedings, the instituting authority may request the disciplinary attorney for the armed forces to conduct preliminary investigations. If facts become known to the disciplinary attorney for the armed forces, which most probably will lead to the imposition of a disciplinary measure, he/she shall, without prejudice to subsection 1, conduct preliminary investigations and bring about the instituting authoritys decision. (2) For the preliminary investigations, 97 shall apply mutatis mutandis.

(3) If the instituting authority refrains from the institution of disciplinary court proceedings after the conclusion of the preliminary investigations, this decision shall be served on the soldier, in case the soldier was heard beforehand. It shall be proceded in the same way, if there is a disciplinary offense and a disciplinary superior has already imposed a disciplinary measure because of this offense. If no simple disciplinary measure can be imposed for a disciplinary offense, because the imposition would contravene a statutory prohibition according to 16, section 1 or 17, section 2, or because the person is a former soldier, the instituting authority shall establish a disciplinary offense. This shall also apply, if the disciplinary superior has already come to the conclusion that there was no disciplinary offense and has already informed the soldier about his/her decision. Reasons for this decision shall be stated and it shall be served on the soldier. In all other cases, the disciplinary superior shall remain responsible for the disciplinary handling of the matter. (4) The soldier shall be entitled to request a decision by the Bundeswehr Disciplinary and Complaints Court against the establishing of a disciplinary offense. 42, no. 5, subsection 2 and no. 12 shall apply mutatis mutandis. An appeal shall be filed within one month from the service of the decision. The Bundeswehr Disciplinary and Complaints Court shall have the final decision as to whether a disciplinary offense has been committed and, if this is the case, it shall also decide whether the disapprobatory remarks were appropriate. The decision shall be served on the soldier. The instituting authority shall be informed about the decision. 93 Order to Institute Proceedings (1) The judicial disciplinary proceedings are instituted by a written decree of the instituting authority. Prior to this, the soldier shall be heard. The institution shall become effective upon service on the soldier.

(2) In the case of an investigation into a military flight accident, the instituting authority shall be responsible for the disciplinary handling of the disciplinary offenses connected with this case, unless it leaves the matter to the disciplinary superior normally responsible. (3) In the case of an investigation into a maritime emergency, the instituting authority, which has the power of decision in cases of maritime emergency, shall be responsible for the disciplinary handling of the disciplinary offenses connected with this case. It may also be entitled to institute disciplinary court proceedings, unless a higher-ranking superior constitutes the instituting authority. 94 Instituting Authorities (1) Instituting Authority shall be: 1. The Federal Minister of Defense for officers from the rank of a colonel, or equivalent, upwards; he/she may transfer this authority to subordinate instituting authorities, but also resume it in individual cases. 2. For other soldiers, the division commander, a higher-ranking superior or superiors holding an equivalent or comparable office. 3. For soldiers, for whom none of the instituting authorities listed in no 1 or 2 are responsible as well as for former soldiers, the Federal Minister of Defense or an authority designated by him/her. 93, section 3 shall remain unaffected. (2) The Federal Minister of Defense shall have the power to determine which superiors are holding equivalent or comparable offices in the meaning of section 1, no 2. (3) That instituting authority shall be responsible, to which the soldier answers at the time of the institution of the proceedings. The responsibility of the instituting authority shall not be affected by a detachment or leave of absence on the part of the soldier. (4) The Federal Minister of Defense shall determine the responsible instituting authority, if there is a doubt or if it is contentious which instituting authority is responsible. (5) If there is a connection between the disciplinary offenses of several soldiers who answer to different instituting authorities, the common higher instituting authority shall determine the responsible instituting authority. 95 Request by the Soldier for the Institution of the Proceedings (1) Every person, on whom a judicial disciplinary measure may be imposed, shall be entitled to request the institution of disciplinary court proceedings against him/her, in order to clear himself/herself of the suspicion of having committed a disciplinary offense. The instituting authority shall be obliged to clarify the circumstances of the case and to establish whether the soldier has committed a disciplinary offense. If the instituting authority refuses to institute

proceedings, it shall state reasons for this decision and serve them on the soldier. It shall be responsible for the disciplinary handling of this case. (2) If the instituting authority has imposed a simple disciplinary measure or established that a disciplinary offense has been committed without imposing a disciplinary measure, 92, section 4 shall apply mutatis mutandis. (3) These provisions shall not apply to 144 of this law in connection with 88 Legal Status of Military Personnel Act. 96 Subsequent Disciplinary Court Proceedings (1) If the instituting authority is of the opinion that a judicial disciplinary measure shall be imposed, it may also institute disciplinary court proceedings, if the disciplinary superior has already imposed a disciplinary measure for the same offense, or if he/she has found a disciplinary measure to be inappropriate or impermissible and has informed the soldier about his/her decision. This shall not apply, if the Military Service Court has taken a decision as a result of a complaint or has decided pursuant to 40, section 4. (2) If the disciplinary court proceedings lead to the imposition of a judicial disciplinary measure, or if the soldier is acquitted, the Military Service Court shall revoke the disciplinary measure in its judgement; in all other cases, the case shall be dropped. 54 shall apply mutatis mutandis, unless an enforced disciplinary arrest, which is being revoked, has been expressly allowed for in criminal proceedings for the same offense, or in proceedings for the imposition of an administrative fine. 6. Investigation by the Disciplinary Attorney for the Armed Forces 97 Principles for the Investigation (1) The disciplinary attorney for the armed forces shall establish the incriminating circumstances, the exonerating circumstances and the factors influencing type and severity of the disciplinary measure. (2) As soon as this is possible without endangering the purpose of the investigations, the soldier shall be given the opportunity to speak on his/her behalf. He/she shall be informed on the breaches of duty of which he/she is accused, at the beginning of the first interrogation. His/her attention shall be simultaneously drawn to the fact, that he/she is free to speak on the case or to remain silent. In appropriate cases the soldier shall also be informed that he/she may respond in writing. In the first summons, the soldier shall be instructed, that he/she may consult a defense counsel at any time, even prior to the first hearing. The minutes of the hearing shall be taken. Upon his/her request, the soldier shall be given a copy of the record. (3) After the conclusion of the investigations, the soldier shall be informed about the essential outcome; he/she shall be heard in conclusion. The soldier shall be entitled to request further investigations. The disciplinary attorney for the armed forces shall decide whether the request should be granted or not. In the course of the concluding hearing and further hearings of the

soldier, which might prove necessary, the presence of the defense counsel shall be permitted.

7. Proceedings up to the Trial 98 Stay of Proceedings (1) 1. 2. 3. 4. The instituting authority shall stay the disciplinary court proceedings, if: There is an impediment to legal action A judicial disciplinary measure is impermissible Only a reduction of emoluments or a cut in pensions is to be expected, but, pursuant to 16, these disciplinary measures cannot be imposed A disciplinary offense has not been committed or has not been proven

(2) The instituting authority may stay the disciplinary court proceedings, if it considers this to be appropriate given the outcome of the investigations or for other reasons. In this case, it shall be responsible for the disciplinary handling; this shall not apply in the case of 96. (3) Reasons for the decision to stay the proceedings shall be stated and be served on the soldier. If the instituting authority imposes a simple disciplinary measure in the case of section 2, subsection 2, or if it establishes the committal of a disciplinary offense and refrains from imposing a disciplinary measure, it shall serve this decision together with the decision to stay the proceedings; 92, section 4 shall apply mutatis mutandis. 99 The Charge (1) If the instituting authority does not stay the disciplinary court proceedings, the disciplinary attorney for the armed forces shall present the charge, together with the files, at the Bundeswehr Disciplinary and Complaints Court. The charge shall, in an orderly fashion, display the facts which allegedly constitute a disciplinary offense and the pieces of evidence. Those facts to the disadvantage of the soldier may only be utilized, if the soldier has been given the opportunity to comment thereon. With the submission of the charge, the proceedings become pending at the Bundeswehr Disciplinary and Complaints Court. (2) If the disciplinary attorney for the armed forces discloses that new breaches of duty will become the subject of the proceedings, the chairman of the Bundeswehr Disciplinary and Complaints Court division shall suspend the proceedings until the disciplinary attorney for the armed forces, after extension of the investigations, presents a supplement to the charge or requests the resumption of the proceedings. (3) If the charge contains facts that the soldier has been given no opportunity to comment on, or if the proceedings, which have been instituted in the correct manner, show other procedural shortcomings, the chairman of the Bundeswehr Disciplinary and Complaints Court division may

request the disciplinary attorney for the armed forces to eliminate these shortcomings. Section 2 shall apply mutatis mutandis. 100 Service of the Charge The chairman of the Bundeswehr Disciplinary and Complaints Court division shall serve the soldier a copy of the charge and the supplements ( 99, section 2) and set a period in which the soldier can make a written statement. In this course, the soldier shall be informed of his/her right to request the appointment of a defense counsel pursuant to 90, section 1, subsection 2. 101 Recourse to the Bundeswehr Disciplinary and Complaints Court (1) If the charge has not been served on the soldier within six months after the service of the order to institute proceedings, the soldier may request a decision by the Bundeswehr Disciplinary and Complaints Court. The Bundeswehr Disciplinary and Complaints Court shall give the disciplinary attorney for the armed forces the opportunity to express his/her view on the request within two weeks. It may demand the submission of all previous records. (2) If the court finds that there is an undue delay, it shall set a period in which either the charge shall be presented or the proceedings shall be stayed. Otherwise, it shall reject the request. The decision shall be served on the soldier and the disciplinary attorney for the armed forces. The decision is final. (3) The running of the period according to section 1, subsection 1 shall be halted as long as the proceedings are suspended pursuant to 83. 102 Notice of the Decision of the Disciplinary Court (1) 1. By a notice of the decision of the disciplinary court, the chairman may: Impose the appropriate disciplinary measure, if no higher disciplinary measure than a debarment from promotion or a debarment from promotion in connection with a reduction of emoluments or a reduction of pension is incurred. Declare the soldier acquitted. Stay the proceedings, if this appears to be necessary because of reasons according to 98, section 1, no 1 to 3.

2. 3.

A notice of the decision of the disciplinary court may only be issued if the matter is free of special factual or legal difficulties, and if the disciplinary attorney for the armed forces, with the approval of the instituting authority, and the soldier in question both accept the imposition of the specific disciplinary measure, the acquittal, or the stay of the proceedings without a trial. (2) Notice of the decision of the disciplinary court shall be issued by an order. Reasons for the decision shall be stated. Upon service on the soldier, it shall have the same validity as a final

judgement.

103 Summons to the Trial, Period Indicated in the Summons (1) When the prescribed period according to 100 has elapsed, the chairman shall set a date for the trial and summon the disciplinary attorney for the armed forces, the soldier and his/her defense counsel. He/she shall, furthermore, summon those witnesses and experts whose appearance he/she regards necessary; their names shall be stated in the summons given to the disciplinary attorney for the armed forces, the soldier and his/her defense counsel. He/she shall also arrange for the production of other evidence that he/she considers to be necessary. (2) A period of at least one week shall elapse between the announcement or the service of the summons and the trial, unless the soldier has waived the observance of the prescribed period; it shall be considered a waiver, if the soldier has accepted the commencement of the trial without complaining that the prescribed period has not been served. 8. The Trial 104 Participation of the Soldier in the Trial (1) 1. 2. 3. 4. The trial shall also take place in the absence of the soldier: If the soldier, upon his/her request, has been released from the obligation to appear at the trial If the order for the presence of the soldier cannot be implemented or is inappropriate because his/her residence is unknown or he/she is outside the purview of this law If the former soldier has been correctly summoned to appear on a certain date and has been instructed in the summons that the proceedings may take place in his/her absence If the soldier is represented by a custodian or curator pursuant to 85

(2) In the cases referred to in section 1, the soldier may arrange to be represented by a defense counsel. (3) The chairman may order the personal appearance of a former soldier. If the former soldier is temporarily incapable to stand trial or if compelling reasons prevent him/her from appearing, the trial shall not proceed until these impediments are removed. 105 Principle of the Exclusion of the Public (1) The trial shall not be open to the public. The presence of disciplinary superiors and their representatives shall be permitted. The chairman of the Bundeswehr Disciplinary and Complaints Court division may permit other persons who have a legitimate personal or official

interest in the subject of the proceedings. (2) Upon request of the soldier, the proceedings shall be made open to the public. 171a to 174 and 175, section 1 and 3 Courts Constitutions Act shall apply mutatis mutandis. The court may also exclude the public from the proceedings or from parts of the proceedings, if this is necessary in order to protect the Bundeswehr or its facilities. 106 Taking of Evidence (1) In order to establish the truth, the court shall, ex officio, extend the taking of evidence to all facts and pieces of evidence relevant to the decision. (2) By reading the minutes in the trial, the taking of evidence in court proceedings can be made subject of the trial. It shall not be necessary for persons to be heard anew whose statements are contained in a judicial record. Subsection 1 and 2 shall only apply to the minutes taken at disciplinary court proceedings, if the trial takes place in the absence of the soldier. In this case, all minutes taken in the disciplinary court proceedings, the preliminary investigations and the investigations conducted by the disciplinary superior may be read. Above and beyond, 251 German Code of Criminal Procedure shall remain unaffected. Insofar as the personal records of the soldier contain facts that may be relevant for the overall judgement, they shall be presented. (3) If the trial is held in the absence of the soldier, the chairman, at the beginning of the trial and in the absence of the witnesses, shall read the current findings of the proceedings. In the case of an enlarged bench, he/she may assign the report to another judge. (4) Witnesses and experts shall be heard, unless the soldier and the disciplinary attorney for the armed forces waive the hearing or the Bundeswehr Disciplinary and Complaints Court considers them to be irrelevant. The essential contents of the statements of the witnesses and experts shall be recorded in the minutes of the trial. 107 Subject of the Deliberations Leading to the Judgement (1) Only those accusations may be made subject of the judgement, which are stated in the charge and its supplements as constituting a disciplinary offense committed by the soldier. (2) After hearing the disciplinary attorney for the armed forces, the Bundeswehr Disciplinary and Complaints Court may exclude those breaches of duty from the disciplinary court proceedings which, presumably or definitely, will have no consequences for the type and severity of the disciplinary measure. The excluded breaches of duty shall not be reintegrated in the disciplinary court proceedings, unless the conditions for the exclusion, subsequently, cease to apply. After the disciplinary court proceedings have been unappealably concluded, no prosecution of the excluded breaches of duty shall be permissible. (3) Also those pieces of evidence may be made subject of the deliberations leading to the judgement, which have been part of the trial according to 106, section 2. 108

Decision of the Bundeswehr Disciplinary and Complaints Court (1) The judgement can only result in a disciplinary measure, an acquittal or a stay of proceedings. (2) An acquittal shall be pronounced, if a disciplinary offense has not been committed or has not been proven (3) The proceedings shall be stayed, if there exists an impediment to the proceedings, a disciplinary measure is impermissible or cannot be imposed according to 16. The court, with the approval of the disciplinary attorney for the armed forces, may stay the proceedings, if it is of the opinion that, although it considers the committal of a disciplinary offense to be proven, a disciplinary measure is nevertheless inappropriate. (4) If an impediment to the proceedings exists, the chairman of the Bundeswehr Disciplinary and Complaints Court division may stay the proceedings, outside the trial, by a decision. 109 Payment of a support contribution (1) Unless the judgement states otherwise, the payment of a support contribution pursuant to 63, section 2 or 65, section 2 shall commence at the time of the loss of emoluments and financial benefits. (2) The payment of the support contribution according to 65, section 2 is effected with the reservation that the return of the money may be claimed, if, for the same period of time, pensions are granted because of the back payment of social insurance contributions. In order to secure the claim for a return of the money, the person sentenced shall give a corresponding declaration of assignment. (3) The court may rule in the judgement that the support contribution shall be paid, partly or wholly, to persons who the person sentenced is legally obliged to maintain; after the judgement has become final, this may also be ordered by the Federal Ministry of Defense. (4) The earned income and the earned income substitute in the meaning of 18a, section 2 and section 3, subsection 1 and 2 of the Social Insurance Act, book IV shall be deducted from the support contribution. The sentenced shall be obliged to report every change in his/her financial circumstances that could be of significance for the payment of the support contribution to the agency responsible for the payment of the support contribution. If he/she, culpably, neglects this obligation, he/she may be, partly or wholly and with retroactive effect, deprived of the support contribution. The Federal Ministry of Defense shall take the pertinent decision. (5) The Federal Ministry of Defense may delegate the powers pursuant to section 3, second half sentence, and section 4, subsection 4 to other agencies. (6) The claim to support contributions shall become extinct if the sentenced is reappointed into the service status of a soldier, or if he/she is appointed into another public office or another public employment. 110

Support Contribution in the Case of Assistance in the Disclosure of Criminal Offenses (1) In the case of a disciplinary discharge, the Federal Ministry of Defense may grant a soldier who has violated the prohibition to accept payment or gifts ( 19 Legal Status of Military Personnel Act) a monthly support contribution, if he/she has disclosed knowledge about facts, which has helped to prevent crimes, especially those listed in 331 to 335 German Criminal Code, or to clarify them beyond the extent of his/her own part in the committal of the crime. The back payment of social insurance contributions shall be effected. (2) The support contributions shall be fixed as a percentage of the claim to pensions deriving from the back payment of social insurance contributions or corresponding benefits from the professional old age provision an according to the following provisions: 1. 2. The support contributions shall not reach the amount of the qualification for a pension deriving from the back payment of social insurance contributions Support contributions and the qualification for a pension deriving from the back payment of social insurance contributions together shall not exceed the amount of money which would be the pensions pursuant to 26, section 1 Military Pensions Act.

It shall be paid, when the former soldier has become 65 years old, or he/she receives disability benefits from the social security pensions insurance or corresponding benefits from the professional old age provision. The maximum limit according to subsection 1 shall also apply to the time support contributions are received; here the qualification for a pension deriving from the back payment of social insurance contributions is replaced by the proratable pension. (3) The claim to support contributions shall become extinct upon reappointment into the public service and in the cases which, for a retired regular soldier, pursuant to 53 Legal Status of Military Personnel Act, would result in the extinguishment of financial benefits. The surviving spouse shall receive 55 % of the support contributions, if the marriage has already existed at the time of the discharge from service. 111 Signature of the Judgement, Service of the Judgement (1) The judgement of the Bundeswehr Disciplinary and Complaints Court division, containing the reasons for the decision, shall be signed by the chairman and, in the case of an enlarged bench, also by both judges. (2) A copy of the judgement shall be served on the soldier and the disciplinary attorney for the armed forces. 9. Proceedings Concerning Application for Litigation 112 Application An application for a court decision, as envisaged in section III of this law, shall be made in writing or recorded at the office of the Military Service Court. Soldiers may file the application also in written form or orally to their immediate disciplinary superiors or, in the cases pursuant to

 5, section 2 and 11, letter b Military Complaints Regulations, to the superiors referred to therein. Upon his/her request, the soldier shall be given a copy of the protocol or the record.

113 Proceedings In the proceedings concerning an application for litigation, the Military Service Court can take evidence and order an oral hearing. Its decision shall take the form of a ruling. 10. Legal Remedies a) Appeal from Court Decisions 114 Regulations for the Appeal Proceedings (1) An appeal from decisions of the Bundeswehr Disciplinary and Complaints Court and from judicial orders to the Federal Administrative Court shall be permissible, unless the law does not explicitly state otherwise. Decisions which precede the passing of a judgement shall only be subject of an appeal in the case of a committal to a public psychiatric hospital or a Bundeswehr hospital, a search or seizure, a determination of criminal punishment, or if they affect a third party. (2) An appeal shall be filed at the Bundeswehr Disciplinary and Complaints Court within one month from the pronouncement of the decision. The prescribed period for the appeal shall also be deemed observed if, during its course, the appeal is submitted to the Federal Administrative Court. 112 shall apply mutatis mutandis. The appeal against the committal to a public psychiatric hospital or a Bundeswehr hospital shall have suspensive effect. (3) If the chairman of the Bundeswehr Disciplinary and Complaints Court division finds that the appeal is justified, the Bundeswehr Disciplinary and Complaints Court may take remedial action. In all other cases, the Federal Administrative Court shall decide by a ruling. (4) If an appeal has been filed too late, the chairman of the Bundeswehr Disciplinary and Complaints Court division shall, in a ruling, reject it as being impermissible. The decision shall be served. b) Appeal (on Points of Fact and Law) 115 Admissibility and Periods Prescribed for the Appeal (1) An appeal on points of fact and law may be made to the Federal Administrative Court against a judgement of the Bundeswehr Disciplinary and Complaints Court until up to one month after the service of this judgement. If the soldier is abroad for official reasons, the chairman of the Bundeswehr Disciplinary and Complaints Court division may prolong the prescribed period for an appeal on points of fact and law appropriately by means of an order, which shall be served simultaneously with the judgement.

(2) If a maintenance allowance has been granted in the judgement contested by the soldier, the decision may only be changed to his/her disadvantage if the Bundeswehr Disciplinary Attorney has requested this by the end of the trial. 116 Filing and Justification of the Appeal (1) The appeal on points of fact and law shall be filed with the Bundeswehr Disciplinary and Complaints Court. The prescribed period for the appeal on points of fact and law shall also be deemed observed if, during its course, the appeal on points of fact and law is submitted to the Federal Administrative Court. 112 shall apply mutatis mutandis. (2) In the notice of appeal the contested judgement as well as the extent to which it is contested shall be stated together with the requested changes. The appeals shall state the grounds on which they are based. 117 Inadmissible Appeal In a ruling, the chairman of the Bundeswehr Disciplinary and Complaints Court division shall reject the appeal on points of fact and law, if it is not admissible, or if it has not been filed in the form or within the period prescribed by the law. The decision shall be served 118 Service of the Appeal If the appeal is being rejected for being inadmissible, a copy of the notice of appeal shall be served on the disciplinary attorney for the armed forces or, if the appeal has been filed by the disciplinary attorney for the armed forces, on the soldier. 119 Forwarding of Files to the Federal Administrative Court If the appeal has been rejected for being inadmissible, the files shall be forwarded to the disciplinary attorney for the armed forces, after expiration of the period pursuant to 115, section 1. He/she shall present the files immediately to the Bundeswehr Disciplinary Attorney who shall forward them to the Federal Administrative Court. 120 Ruling of the Court of Appeal (1) 1. 2. By a ruling, the Federal Administrative Court may: Reject the appeal for reasons pursuant to 117 Revoke the verdict of the Bundeswehr Disciplinary and Complaints Court and remit the case to another division of the same or another Bundeswehr Disciplinary and Complaints Court for a second decision and a retrial, if it considers further clarification to be necessary or if the proceedings disclosed substantial errors.

(2) Prior to the ruling in the cases referred to in section 1, the disciplinary attorney for the armed forces shall be given the opportunity to express his/her view, if the soldier has filed the appeal and, if the disciplinary attorney for the armed forces has filed the appeal, the soldier shall be given the same opportunity. (3) The reasons for the ruling shall be stated and served on the soldier as well as on the disciplinary attorney for the armed forces. 121 Judgement of the Court of Appeal (1) If the Federal Administrative Court finds that the appeal on points of fact and law is admissible and well-founded, it shall give its own decision on the merits and shall quash the judgement of the Bundeswehr Disciplinary and Complaints Court. (2) If the Federal Administrative Court considers further clarification to be necessary, or if the proceedings disclose substantial errors, it may revoke the judgement of the Bundeswehr Disciplinary and Complaints Court and remit the case to another division of the same or another Bundeswehr Disciplinary and Complaints Court for a second decision and a retrial. 121a Redress in case of a violation of the right of audience If the Federal Administrative Court, in the decision on the appeal, has violated the right of audience of the concerned person in a decisive way, it shall, insofar as the person concerned is still adversely affected, ex officio or upon request, set the proceedings back to the stage before the passing of the decision by a ruling. A request for redress shall be filed within two weeks from the service of the decision in writing or recorded at the office of the court of appeal. 122 Obligation of the Bundeswehr Disciplinary and Complaints Court If the case is remitted to a Bundeswehr Disciplinary and Complaints Court, the court shall be bound by the ratio decidendi, on which the decision of the Federal Administrative Court is based. 123 Principles Governing the Proceedings In the proceedings at the Federal Administrative Court, protocols of the statements made by experts and witnesses at the trial of the first instance may be read out in the course of the reporting and the taking of evidence. Unless they are necessary to establish the truth, there shall be no need for repeated summons and hearings of the experts and witnesses. Above and beyond, the provisions for proceedings at a Bundeswehr Disciplinary and Complaints Court shall apply analogously. 124 Non-appearance of the Soldier Except for the cases pursuant to 104, section 1, the trial before the appellate court shall also take place in the absence of the soldier, if the soldier has been properly summoned and, in the

summons, has been referred to the fact that the trial may be held in his/her absence.

c) Res Judicata 125 Legal Force of Judicial Decisions (1) If no appeal has been filed, the decisions of the Bundeswehr Disciplinary and Complaints Court shall become res judicata as soon as the time for appealing has elapsed. If an appeal is withdrawn or if the right to file an appeal is waived, the time the Military Service Court receives the waiver or the withdrawal shall be relevant. (2) Decisions of the Bundeswehr Disciplinary and Complaints Court, which no longer are contestable by means of an appeal, shall become final on their announcement. (3) Decisions of the Federal Administrative Court shall become final when they are served, judgements when they are announced. 11. Temporary Suspension, Retention of Emoluments 126 Admissibility, Effectiveness, Legal Remedies (1) The instituting authority may temporarily suspend the soldier, if disciplinary court proceedings are or have been instituted against him/her. A suspension may be imposed in conjunction with a ban on wearing the uniform. (2) Simultaneously with the temporary suspension or later, the instituting authority may order that a part, at most one half, of the soldiers emoluments be retained, if it is likely that the disciplinary court proceedings will result in a disciplinary discharge or the deprivation of the retirement pension. If the soldier retires during the time of the disciplinary court proceedings, the instituting authority shall revoke its order concerning the retention of emoluments; it may simultaneously issue an order for the retention of a part of their retirement pension. (3) In the case of a former soldier, the instituting authority may, simultaneously with the institution of the disciplinary court proceedings or later, order that a part of the retirement pension, at most 30%, be retained. (4) The order concerning the decided measures shall be served on the soldier. The order for a temporary suspension shall become effective upon service on the soldier, the order for retention of emoluments or of the retirement pension upon the next following due date after the service. (5) Ex officio or upon request, the instituting authority may revoke an order which has been issued according to section 1 to 4 at any time. The decision shall be served on the soldier. If the instituting authority rejects a request for revocation, the soldier may, within one month after the service, request a decision by the Bundeswehr Disciplinary and Complaints Court. If the proceedings are pending at the Federal Administrative Court, this court shall take the place of the

Bundeswehr Disciplinary and Complaints Court. (6) With the final conclusion of the proceedings, these orders shall cease to be effective by force of law. 127 Forfeiture and Back Payment of the Amounts of Money Retained (1) 1. 2. The amounts of money retained pursuant to 126 shall forfeit if: A disciplinary discharge or a deprivation of pension has been imposed in the disciplinary court proceedings A punishment has been imposed in the course of criminal proceedings because of the same offense, which results in the loss of rights as a regular soldier or a temporary-career volunteer or in the loss of emoluments, pensions or similar benefits The disciplinary court proceedings have been stayed because the soldier has lost his/her rank and other rights ensuing from his/her service status for other reasons and the instituting authority, or, following pendency, the Military Service Court has established that a discharge from service or a deprivation of pension would have been justified The disciplinary court proceedings have been stayed because of a procedural shortcoming and new proceedings for the same disciplinary offense, instituted within three months after the stay, have resulted in a discharge from service or a deprivation of pension In the course of disciplinary court proceedings a deprivation of rank has been imposed in accordance with the prerequisites of 66

3.

4.

5.

(2) The retained amounts of money shall be paid back, if the disciplinary court proceedings have been finally concluded in any other way, or if they are stayed by the instituting authority or, following pendency, by the Military Service Court in the case referred to in section 1, no 3, without the establishment mentioned there. The costs of the proceedings, insofar as they are to be borne by the sentenced person, and a disciplinary fine imposed on him/her may be deducted from the amounts of money to be paid back. (3) Income from a sidejob requiring prior permission ( 20 Legal Status of Military Personnel Act) the soldier has been engaged in during the suspension shall be deducted from the back payments according to section 2, if a disciplinary offense or an act constituting a disciplinary offense has been proven. The soldier shall be obliged to provide information about the amount of any such income. (4) The finding of the instituting authority pursuant to section 1, no 3 and the decision of the instituting authority pursuant to section 3 shall be served on the soldier. Within one month from the service of the decision, he/she may request a decision by the Bundeswehr Disciplinary and Complaints Court. The Bundeswehr Disciplinary and Complaints Court shall have the final decision. 12. Proceedings Concerning Application to the Military Service Court in the Case of Subsequent Imposition of a Punishment by a Criminal Court

 128 Requirements and Responsibility (1) If a simple disciplinary measure, a reduction of emoluments or a cut in pensions has been imposed finally in the disciplinary court proceedings, and if a court or authority subsequently imposes a punishment or a corrective measure, or if an act, pursuant to 153a, section 1, subsection 5 or section 2, subsection 2 German Code of Criminal Procedure, can no longer be prosecuted as an offense, due to fulfillment of obligations and directives, the disciplinary measure shall be revoked upon request of the soldier, if its imposition after the closing of the criminal proceedings or the proceedings for an administrative fine would constitute a violation of 16, section 1. There shall be no revocation of the disciplinary measures referred to in 16, section 1, no 2, if the prerequisites for an additional disciplinary measure have been at hand at the time of the imposition. (2) A disciplinary arrest that has been unappealably imposed shall be revoked, if and insofar as its duration in combination with a term of imprisonment, imposed subsequently for the same act, exceeds three weeks. (3) A revocation shall be excluded, if the disciplinary measure has been recognizably allowed for in the criminal proceedings or in the proceedings for the imposition of an administrative fine. (4) The court that has imposed the disciplinary measure shall decide on the request for revocation. 45, section 3 shall apply mutatis mutandis to the case referred to in section 1. 13. Reopening of the Disciplinary Court Proceedings 129 Admissibility of the Reopening (1) Reopening of disciplinary court proceedings concluded by a final judgement shall be admissible, if: 1. 2. 3. 4. 5. 6. A disciplinary measure has been imposed in the judgement, which type and severity are not provided for in the law Relevant and new facts and pieces of evidence are presented The judgement is based on the contents of an inauthentic or forged document or on a false statement or expert opinion, either given wilfully or as an act of negligence A court judgement, on which factual findings the judgement in the disciplinary court proceedings is based, is rescinded by another final judgement A judge or honorary judge participated in drafting the judgment who is guilty of a criminal violation of his official duties in relation to the case A judge or honorary judge has participated in drafting the judgement who is excluded by law from exercising his/her justiceship, unless the reasons for a statutory exclusion have already been raised without success

7.

The person sentenced has, subsequently und credibly, confessed the committal of a disciplinary offense which had not been established in the final judgement of the concluded disciplinary court proceedings

(2) Relevant, in the meaning of section 1, no 2, are facts and pieces of evidence, if they, either in isolation or in conjunction with previously established facts, are suitable to produce a different decision, which may be the objective of the reopening of the disciplinary court proceedings. New, in the meaning of section 1, no 2 are facts and pieces of evidence, which were not known to the court at the time of the decision. If, after a judgement in disciplinary court proceedings has become final, a final judgement is pronounced in criminal proceedings or proceedings for the imposition of an administrative fine, instituted because of the same offense which is based on established facts that deviate from those established facts on which the judgement in the disciplinary court proceedings is based on, the deviating facts from the judgement of the criminal proceedings or the proceedings for the imposition of an administrative fine shall be deemed new facts in the meaning of section 1, no 2. (3) In the cases pursuant to section 1, no 3 and 5, a reopening of the disciplinary court proceedings shall only be admissible, if the alleged act has resulted in a final judgement, or if criminal proceedings, for other reasons than the lack of evidence, cannot be instituted or carried out. 130 Inadmissibility of the Reopening (1) The reopening of disciplinary court proceedings, which have been concluded by a final judgement, shall be inadmissible, if, after the judgement has become final: 1. A judgement is pronounced in the course of criminal proceedings or proceedings for the imposition of an administrative fine, which refers to the same facts of the case and considers them in the same manner, unless this judgement becomes finally rescinded A judgement is pronounced in the course of criminal proceedings, by which the person sentenced has lost his/her status as a regular soldier or temporary-career volunteer, or would have lost it, if he/she was still an active service member or received pensions

2.

(2) The reopening of disciplinary court proceedings to the disadvantage of the sentenced person shall also be inadmissible, if three years have passed since the judgement has become final. 131 Application, Period, Proceedings (1) An application shall be made for the reopening of disciplinary court proceedings. Persons entitled to make an application are: 1. The sentenced person and his/her legal representative, upon his/her death his/her spouse or common law spouse, his/her relatives on the ascending and descending line and his/her siblings The disciplinary attorney for the armed forces upon request of the instituting authority if

2.

the instituting authority does not exist any more, the Federal Minister of Defense shall designate which office shall exercise its powers 3. The Bundeswehr Disciplinary Attorney upon request of the Federal Minister of Defense, if a decision by the Federal Administrative court is being contested

(2) The application shall be filed, either in written form or for the record with the registrar of the clerks office, within three months at that Military Service Court the decision of which is being contested. 112 shall apply mutatis mutandis. The period shall begin the day the person entitled to apply has had knowledge of the reason for the reopening. In the application the contested judgement as well as the extent to which it is contested shall be stated as well as the requested changes; the application shall state the reasons for it and name the pieces of evidence referred to. (3) The provisions governing the disciplinary court proceedings at the Bundeswehr Disciplinary and Complaints Court and the Federal Administrative Court shall apply analogously for the further proceedings. 132 Decision by Ruling (1) The Military Service Court may reject the request by a ruling, even after the opening of the oral hearing, if it is of the opinion that the legal prerequisites for an admission are not at hand or that the application is not well-founded. (2) Before the opening of the oral hearings, the Military Service Court may, by a ruling and with the permission of the disciplinary attorney for the armed forces or the Bundeswehr Disciplinary Attorney, rescind the contested judgement or stay the disciplinary court proceedings. This ruling shall be incontestable. (3) The final ruling in the meaning of section 1 as well as the ruling in the meaning of section 2 shall have the same validity as a final judgement. 133 Oral Proceedings, Decision by Judgement (1) If the retrial is not concluded in another way, the Military Service Court shall decide by a judgement, based on the oral hearings. (2) An appeal on points of fact and law from judgements of a Bundeswehr Disciplinary and Complaints Court shall be admissible. 134 Legal Consequences, Compensation (1) If the judgement is rescinded to the advantage of a sentenced person in the course of a retrial, he/she shall, as soon as the judgement becomes final, have the legal status he/she would have had, if the rescinded judgement were the same as the judgement in the retrial. If the rescinded judgement resulted in a disciplinary discharge or the deprivation of pension, 52 Legal Status of Military Personnel Act shall apply mutatis mutandis.

(2) In the case of section 1, the sentenced person and the persons he/she is legally obliged to maintain may, additionally to the back payment of the retained emoluments, claim compensation for any other damage from the Federal Government, according to the respective relevant version of the Prosecution Compensation Act of 08 March 1971 (BGB1 I p. 157). The claim shall be filed at the instituting authority responsible pursuant to 131, section 1, no 2, within three months after the final conclusion of the retrial. The decision shall be served on the claimant. If the instituting authority rejects the claim, the provisions for the legal recourse of legal claims of military service members shall apply mutatis mutandis to the further procedure. 14. Enforcement of Disciplinary Measures 135 Execution of the Enforcement (1) The disciplinary attorney for the armed forces shall request the immediate disciplinary superior of the soldier to enforce the simple disciplinary measures or, in cases pursuant to 48, section 1, subsection 3, a different office. (2) Generally, the enforcement of the reduction of emoluments commences the month after the judgement has become final. If the service status terminates prior or subsequent to the judgement becoming final, and if the soldier is entitled to retirement pensions, the regular pensions, calculated on the basis of the full monthly emoluments, shall be cut by the same percentage as the monthly emoluments for the duration of the imposed reduction of emoluments. If the soldier is not entitled to regular pensions but to a transitional grant, this grant shall be cut by the amount by which the transition allowances would have had to be reduced, if the soldier has received transition allowances for the duration of the period specified in the judgement for the reduction of emoluments, it shall be cut to the amount of 75% of the last monthly emoluments. If the entitlement to transition allowances expires prior to the elapse of the period of enforcement, the transitional grant shall be cut by the amount by which the transition allowances still would have had to be reduced, if the soldier had continued to receive such benefits. In both cases the soldier shall still receive a minimum of at lest 50% of the transitional grant. Death grants as well as widows allowances and orphans allowances shall not be cut. (3) The period for the debarment from promotion shall commence when the judgement becomes final, but not before the elapse of the enforcement of a previously imposed debarment from promotion. (4) The reduction in paygrade and the demotion shall become effective when the judgement becomes final. The monthly emoluments or retirement pensions according to the new paygrade shall be paid as of the first of the month after the judgement has become final. (5) The disciplinary discharge shall become effective when the judgement becomes final. The monthly emoluments shall cease to be paid at the end of the month the judgement becomes final. A judgement for a disciplinary discharge shall constitute a judgement of deprivation of pension, if the soldier has retired before the judgment becomes final. (6) Section 2, subsection 1 and 6 shall apply mutatis mutandis to the cut in pensions, section 5, subsection 1 and 2 to the deprivation of pension and section 5, subsection 1 to the deprivation of rank.

15. Expensae Litis 136 General Costs shall only be charged in disciplinary court proceedings. 137 Extent of the Liability to Pay Costs (1) (2) 1. 2. 3. No fees shall be levied in disciplinary court proceedings. The following expenses shall be charged: Expenses which are charged in accordance with the Act on the Costs of Court Proceedings. Incurred costs because of the official release of the soldier, or of soldiers being heard as experts or witnesses (89), with the exception of the postal fees The traveling expenses of the disciplinary attorney for the armed forces, a judge whose presence has been requested and their registrars that incurred in the course of the investigations The costs for the accommodation and examination of the soldier in a public psychiatric hospital or a Bundeswehr hospital Payments to be paid to an attorney as well as the cash expenses incurred by another defense counsel who has been appointed additionally Expenses incurred by the custodian or curator appointed pursuant to 85, section 2. 138 Liability of the Soldier and the Federal Republic of Germany to Pay Costs (1) The costs of the proceedings shall be imposed on the soldier, if he/she is sentenced; they shall, however, be partly or wholly imposed on the Federal Government, if it was inequitable to burden the soldier with the costs. Subsection 1, second half shall also apply, if special costs have accrued in the course of investigations for the clarification of certain incriminating and exonerating circumstances and these investigations result favorably for the soldier. (2) The same shall apply, if the Military Service Court stays the disciplinary court proceedings because the soldier has lost his/her rank and other rights ensuing from his/her service status in other ways than by a judgement in criminal proceedings, and according to the investigations, a disciplinary offense or an act constituting a disciplinary offense has been proven. (3) If the soldier is acquitted, or if the Military Service Court stays the disciplinary court proceedings for other reasons than those referred to in section 2, he/she shall only bear those costs that accrue from his/her culpable tardiness.

4. 5. 6.

(4) Costs of the proceedings which are not to be borne by the soldier in the cases referred to in section 1, subsection 1, section 2 or 3, shall be imposed on the Federal Government, unless a third party has to bear them partly or wholly. 139 Costs of Legal Remedies and Appeals (1) The costs of a successful legal remedy of the soldier or the disciplinary attorney for the armed forces, insofar as it was filed to the advantage of the soldier, shall be borne by the Federal Government. The costs of a successful legal remedy, filed by the disciplinary attorney for the armed forces to the disadvantage of the soldier, shall be borne by the soldier; they shall, however, be imposed, partly or wholly, on the Federal Government, if it was inequitable to burden the soldier with the costs. (2) The costs of a legal remedy that has been withdrawn or which proved to be unsuccessful shall be borne by the person who filed such legal remedy. (3) Should the legal remedy be partly successful, the Military Service Court shall burden the Federal Government, partly or wholly, with the costs, if it was inequitable to burden the soldier with the costs. (4) If the Military Service Court has stayed the disciplinary court proceedings, because a pronounced debarment from promotion cannot be imposed on a soldier, who has retired after the filing of the appeal, the soldier shall bear the costs of the proceedings. If it was inequitable to burden the soldier with the costs of the proceedings, they shall be, partly or wholly, imposed on the Federal Government. (5) Section 1 to 4 shall apply analogously to those costs of the proceedings accrued because of an application for a court decision in the cases pursuant to 92, section 4, 95, section 2, 98, section 3, subsection 2, 121a, 127, section 4 and 128 or because of an application for the reopening of a case. 140 Necessary Expenses (1) If the soldier is acquitted or if the disciplinary court proceedings are stayed for other reasons than those stated in 138, section 2, the Federal Government shall be burdened with the soldiers necessary expenses. (2) The necessary expenses incurred by the sentenced soldier shall be burdened by the Federal Government, partly or wholly, if it was inequitable to burden the soldier with the costs. Subsection 1 shall also apply, if the judgement is only partly based on the alleged breaches of duty, or if special costs have accrued in the course of investigations for the clarification of certain incriminating and exonerating circumstances and these investigations have resulted favorably for the soldier. (3) If the disciplinary attorney for the armed forces files a legal remedy to the disadvantage of the soldier, and it is withdrawn or not successful, the accrued necessary expenses of the soldier shall be borne by the Federal Government. The same shall apply, if a legal remedy filed by the

disciplinary attorney for the armed forces to the advantage of the soldier is successful. In the case of a successful legal remedy, filed by the disciplinary attorney for the armed forces to the disadvantage of the soldier, the soldiers necessary expenses, which have accrued in the course of the legal proceedings, shall be borne, partly or wholly, by the Federal Government, if it was inequitable to burden the soldier with the costs. (4) If the soldier restricts the legal remedy and is successful therein, the necessary expenses incurred by the soldier shall be borne by the Federal Government. (5) If a legal remedy is partly successful, 139, section 3 shall apply mutatis mutandis. If a legal remedy filed by the soldier is unsuccessful to the full extent, it shall be inadmissible that the necessary expenses, which have accrued in the course of the legal proceedings, are borne, partly or wholly, by the Federal Government. (6) Necessary expenses incurred by the soldier through his/her own culpable tardiness, shall not be borne by the Federal Government. (7) The soldiers necessary expenses shall not be imposed on the Federal Government, if the soldier has caused the institution of disciplinary court proceedings because he/she has pretended to have committed the disciplinary offense he/she is accused of. The necessary expenses incurred by the soldier may not be imposed on the Federal Government, if: 1. The soldier has caused the institution of the disciplinary court proceedings by falsely incriminating himself/herself with regard to material points or in contradiction to his/her later statement or by concealing material exonerating circumstances despite having made a statement in response to this allegation. A disciplinary measure is not imposed on the soldier in the course of the disciplinary court proceedings for the sole reason that an impediment to the proceedings exists. The Military Service Court stays the proceedings pursuant to 108, section 3, subsection 2. The instituting authority stays the disciplinary court proceedings and imposes a simple disciplinary measure. Necessary expenses shall also include: Compensation for inevitable loss of time pursuant to the provisions applying to the compensation of witnesses, if there is no entitlement to monthly emoluments or retirement pensions Fees and expenses of the attorney, if they are to be reimbursed pursuant to 91, section 2 Code of Civil Procedure as well as the expenses incurred by another defense counsel.

2. 3. 4. (8) 1.

2.

(9) Section 1 to 8 shall apply analogously to the preliminary investigations pursuant to 92, the proceedings concerning an application for litigation pursuant to 92, section 4, 95, section 2, 98, section 3, subsection 2, 121a, 127, section 4 and 128, as well as to the retrial.

 141 Decision on costs (1) Each decision on the main issue must stipulate who shall bear the costs of the proceedings.

(2) The decision as to who shall bear the necessary expenses shall be stated by the Military Service Court in the judgement or in the order concluding the proceedings. (3) The costs may be deducted from the monthly emoluments or retirement pensions or from a support contribution granted in pursuance of 109. If necessary, the amounts of money shall be collected pursuant to the Administrative Enforcement Act. (4) If the instituting authority refrains from the institution of disciplinary court proceedings after conclusion of the preliminary investigations according to 92, or if it stays the proceedings, the judge of the Bundeswehr Disciplinary and Complaints Court which would have had the power of decision in the trial shall decide, upon request of the soldier or the instituting authority, who shall bear the necessary costs. The application for reimbursement of the necessary costs shall be presented at the Bundeswehr Disciplinary and Complaints Court within one month after the service of the decision. If the judge intends not to burden the Federal Government to the full extent with the necessary expenses, the soldier shall be given the opportunity to comment. The decision shall be served on the soldier. The instituting authority shall be informed about the decision. (5) Complaints against the decision of the Bundeswehr Disciplinary and Complaints Court or the decision of the judge of the Bundeswehr Disciplinary and Complaints Court concerning the question as to who shall bear the costs and the necessary expenses shall be admissible. The complaint shall be filed with the Bundeswehr Disciplinary and Complaints Court within one month after receipt of the decision. The Bundeswehr Disciplinary and Complaints Court shall decide on such complaints. 142 Determination of Costs The amount of the costs that have to be reimbursed according to the decision on the costs shall be determined by the registrar of the clerks office of the Bundeswehr Disciplinary and Complaints Court. The chairman of the Bundeswehr Disciplinary and Complaints Court division shall have the final decision, if objections are raised concerning the determined amount of the costs. 112 shall apply mutatis mutandis. Concluding Provisions 143 Special Provisions for Temporary-career Volunteers (1) If a decree of discharge pursuant to 55, section 5 Legal Status of Military Personnel Act is served on a temporary-career volunteer within his/her first 4 years of service, disciplinary court proceedings may only be resumed or instituted against him/her for the same offense, if it is ascertained unappealably that the decree of discharge does not lead to a termination of the

service status. If the Federal Administrative Court revokes the decree of discharge, a disciplinary discharge shall not be imposed for the same act. 84, section 2 shall apply mutatis mutandis. (2) If disciplinary court proceedings become pending against a temporary-career volunteer, he may no longer be discharged for the same offense on the basis of 55, section 5 Legal Status of Military Personnel Act. 144 Special Discharge of a Soldier The provisions governing the disciplinary court proceedings shall apply analogously to the proceedings in Military Service Courts in the cases pursuant to 88 Legal Status of Military Personnel Act. The judgement shall either establish that the soldier is unworthy of his/her appointment into service status for reasons of his/her conduct prior to the appointment, or reject the request for such a finding. 145 Binding Effect of Disciplinary Decisions for Courts (1) The Military Service Courts shall have the sole responsibility for the decision taken in disciplinary court proceedings, for the judicial reexamination of decisions taken by the disciplinary superior as well as for any other judicial decisions envisaged by this law. (2) Decisions taken by disciplinary superiors and Military Service Courts on the basis of this law shall have a binding effect with respect to the assessment of the rights ensuing from the service status claimed before a court. 146 Authorization to Promulgate a Statutory Order The Federal Ministry of Defense shall be authorized to determine, by a statutory order and in agreement with the Federal Ministry of the Interior, which emoluments, in cash and kind, shall be considered to constitute the monthly emoluments and the military pay in the meaning of 24, 126 and the first section of chapter III of this law. 147 Transitional Provisions (1) The extinction in the record of a simple disciplinary measure that has been imposed before 01 January 2002 shall be governed by the provisions that applied before January 2002. A debarment from promotion, imposed before 01 January 2002, shall be extinct from the record according to the provisions of this law. (2) For complaints against disciplinary measures imposed before 01 January 2002 as well as against any other measures and decisions taken by the disciplinary superior before 01 January 2002, the provisions heretofore in force shall apply. 148 Restriction of Basic Rights

This law restricts the basic right of the inviolability of the person (Article 2, section 2, subsection 1 Basic Law) and the basic right of the liberty of the individual (Article 2, section 2, subsection 2 Basic Law).