the military disciplinary code of germany

7/29/2019 The Military Disciplinary Code of Germany

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The Military Disciplinary Code

Military Disciplinary CodeVersion 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 Purview and Personal Applicability

2 Previously committed Disciplinary Offenses

3 Inspection of Records by the Soldier 4 Participation of the Spokesperson 5 Notifications

6 Instruction concerning Legal Remedies and Appeals 7 Disciplinary Record

8 Extinction in the Record

9 Information

10 Reimbursement of Witnesses and Experts

Section I

Appreciation of Exceptional Performances by Official Recognition

11 Prerequisites for and Types of Official Recognition

12 Responsibility for conferring Official Recognition 13 Conferment of Official Recognition

14 Withdrawal of Official Recognition

Section II

Punishment of Disciplinary Offenses by Disciplinary Measures

Chapter I

General Provisions

15 Disciplinary Measures, Principle of Discretion

16 Disciplinary Measures in Relation to Criminal Punishment and Corrective Measures

17 Lapse of Time

18 Prohibition of Multiple, Principle of Uniform Punishment

19 Right of Pardon

20 Search and Seizure 21 Provisional Arrest

11

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


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Chapter II

The Disciplinary Authority of the Disciplinary Superiors and its Use

1. Simple Disciplinary Measures

22 Types of Simple Disciplinary Measures 23 Reprimand, Severe Reprimand

24 Disciplinary Fine 25 Confinement to Quarters

26 Disciplinary Arrest

2. Disciplinary Authority

27 Disciplinary Superiors

28 Levels of Disciplinary Authority

29 Responsibility of the Immediate Disciplinary Superior 30 Responsibility of the Next in Rank Disciplinary Superior

31 Disciplinary Authority according to Rank

3. The Use of Disciplinary Authority

32 Investigation by the Disciplinary Superior 33 Duty of the Disciplinary Superior to Examine the Course of Action to be Taken

34 Binding Effect of Facts established in other Decisions

35 Independence of the Disciplinary Superior

36 Refraining from the Imposition of a Disciplinary Measure

37 Imposition of a Disciplinary Measure 38 Guidelines for Determination of the Disciplinary Measure

39 Consideration of Periods of Confinement in the Disciplinary Measure

40 Role of the Judge in the Imposition of the Disciplinary Arrest

41 Disciplinary Superior and the Disciplinary Court Proceedings

4. Complaints against Measures and Decisions of the Disciplinary Superior

42 Application of the Military Complaints Regulations

5. 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. Enforcement

47 Enforceability of the Disciplinary Measures

48 Enforcing Superior

49 Suspension, Delay and Interruption of Enforcement

50 Enforcement of Reprimand and Severe Reprimand


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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

58 Types of Judicial Disciplinary Measures 59 Cut in Emoluments 6 0 Debarment from Promotion

61 Reduction in Pay Grade 62 Demotion

63 Disciplinary Discharge

64 Cut in Pension

65 Deprivation of Pension

66 Deprivation of Rank

67 Disciplinary Measures against former Soldiers who are deemed Retired Soldiers

2. Military Service Courts

68 Definition of Military Service Courts

a) Bundeswehr Disciplinary and Complaints Court

69 Establishment 70 Responsibility

71 Composition

72 Presidential Constitution

73 Supervision

74 Honorary Judges 75 The Bench

76 Enlarged Bench

77 Exclusion from Justiceship

78 Defaulting Honorary Judges

79 Suspension and Expiration of the Office as a Honorary Judge

b) Federal Administrative Court

80 Military Affairs Division, Establishment, Composition, Responsibility

3. Disciplinary Attorneys for the Armed Forces


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81 Organization and Tasks

4. General Provisions Concerning Disciplinary Court Proceedings

82 Proceedings against Former Soldiers 83 Suspension of Disciplinary Court Proceedings 84 Binding Effect of Facts Established in other Decisions

85 Incapacity of the Soldier to stand Trial 86 Witnesses and Experts

87 Inpermissibility of Arrest

88 Expert Opinion on the Mental State

89 Summons to Appear

90 Legal Defense

91 Supplementary Provisions

5. Institution of the Proceedings

92 Preliminary Investigations 93 Order to Institute Proceedings

94 Instituting Authorities 95 Request by the Soldier for the Institution of the Proceedings

96 Subsequent Disciplinary Court Proceedings

6. Investigation by the Disciplinary Attorney for the Armed Forces

97 Principles for the Investigation

7. Proceedings up to the Trial

98 Stay of Proceedings

99 The Charge

100 Service of the Charge

101 Recourse to the Bundeswehr Disciplinary and Complaints Court

102 Notice of the Decision of the Disciplinary Court 103 Summons to the Trial, Period Indicated in the Summons

8. The Trial

104 Participation of the Soldier in the Trial

105 Principle of the Exclusion of the Public

106 Taking of Evidence

107 Subject of the Deliberations Leading to the Judgement

108 Decision of the Bundeswehr Disciplinary and Complaints Court

109 Payment of a Support Contribution

110 Support Contribution in the Case of Assistance in the Disclosure of Criminal Offenses

111 Signature of the Judgement, Service of the Judgement

9. Proceedings Concerning Application for Litigation

112 Application


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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 Admissibility and Periods Prescribed for the Appeal 116 Filing and Justification of the Appeal

117 Inadmissible Appeal

118 Service of the Appeal

119 Forwarding of Files to the Federal Administrative Court

120 Ruling of the Court of Appeal

121 Judgement of the Court of Appeal

122 Obligation of the Bundeswehr Disciplinary and Complaints Court

123 Principles Governing the Proceedings

124 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 Admissibility of the Reopening

130 Inadmissibility of the Reopening 131 Application, Period, Proceedings

132 Decision by Ruling 133 Oral Proceedings, Decision by Judgement

134 Legal Consequences, Compensation

14. Enforcement of Disciplinary Measures

135 Execution of the Enforcement

15. Expensae Litis


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136 General

137 Extent of the Liability to Pay Costs

138 Liability of the Soldier and the Federal Republic of Germany to Pay Costs

139 Costs of Legal Remedies and Appeals

140 Necessary Expenses 141 Decision on Costs

142 Determination of Costs

Concluding Provisions

143 Special Provisions for Temporary-career Volunteers

144 Special Discharge of a Soldier

145 Binding Effect of Disciplinary Decisions for Courts

146 Authorization to Promulgate a Statutory Order

147 Transitional Provisions

148 Restriction of Basic Rights


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Introductory Provisions

1

Purview and Personal Applicability

(1) This law shall regulate the recognition of outstanding performances by official recognitionand the punishment of disciplinary offenses by disciplinary measures.

(2) This law shall apply to soldiers. It shall furthermore apply to those who have done theirmilitary 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 bepossible 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 thecharge, 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,


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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 handingover

2. By a registered letter with advice of delivery

3. 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 deemedserved 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


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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 forextinction, 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 andthe 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 officialrecognitions, 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

2. The infringed party for the safeguarding of its rights


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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 theconsent 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 wayof official recognition

(2) Official recognitions are:

1. Recognition in the company order or in the order of the day

2. Recognition in the Federal Ministry of Defense Gazette

(3) An official recognition may also be linked with special leave of up to 14 days

(4) Exceptional performances may also be recognized by way of other types of distinction

12

Responsibility for Conferring Official Recognition

(1) Entitled to confer Official Recognition are:

1. 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:


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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 abattalion commander:


3. The regimental commander or another disciplinary superior with the disciplinary power of

a regimental commander:


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 ornot 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 theannual leave shall be excluded.

(4) The decision shall be served on the soldier.


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Section II

Punishment of Disciplinary Offenses by Disciplinary Measures

CHAPTER IGENERAL 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 processhe/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. Simple disciplinary measures except for disciplinary arrest shall not be imposed.

2. 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.


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(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 samecase, 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. Section96 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 andComplaints Court within three days. 20, subsections 3 and 4 shall apply mutatis mutandis. The


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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 tosection 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 acopy of the record.

(5) Above and beyond, 94, section 1 and 2, 95, section 1, 97, 109 and 111k of theGerman 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


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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 thecircumstances 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. Reprimand

2. Severe Reprimand

3. Disciplinary Fine

4. Confinement to Quarters

5. Disciplinary Arrest

(2) The following measures may be combined:

1. Disciplinary arrest and confinement to quarters,

2. 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.


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23

Reprimand, Severe Reprimand

(1) A reprimand is the formal stricture of a specific undutiful conduct of the soldier.

(2) 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 notconstitute 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 thesoldier shall be taken into consideration.

25

Confinement to Quarters

(1) Confinement to quarters means that the soldier is forbiddento 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 ofMilitary 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


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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. The company commander or an officer holding a corresponding office

a) on noncommissioned officers and enlisted soldiers:

reprimand, severe reprimand, disciplinary fine and confinement to quarters and

disciplinary arrest for up to 7 days,

b) on officers:

reprimand.

2. The battalion commander or an officer holding a corresponding office

a) on noncommissioned officers and enlisted soldiers:

all types of simple disciplinary measures,

b) on officers

all types of simple disciplinary measures, with the exception of the disciplinary arrest.

3. The Federal Minister of Defense as well as all officers from the rank of a regimentalcommander and brigade commander upwards and the officers holding correspondingoffices:

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.


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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 superiorvested 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 punishedby the immediate disciplinary superior, because:

1. The immediate disciplinary superior has been involved in the committal of the offense.

2. In cases pursuant to 29, section 3, the offense has been committed by a person equal or

higher in rank.

3. 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.

4. 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. His/her disciplinary authority is insufficient ( 28, section 1, no 1 and 2)

2. He/she has been personally injured by the offense

3. 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.


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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. 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.

2. A major, lieutenant colonel or an officer with a corresponding rank shall have the

disciplinary powers of a battalion commander.

3. 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. Incases 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


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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 thedisciplinary offense in order to impose a disciplinary measure or whether he/she has to bringabout the decision of the instituting authority.

(2) The disciplinary superior shall only initiate disciplinary measures if all other measureshave 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 disciplinarymeasures 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. Thisshall 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/herconduct.

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 thedisciplinary 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. Thisshall be stated in the grounds for the decision.


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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 thisdecision 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 ofevidence 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.


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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 inview of the type and severity of the disciplinary measures.

(2) Generally, mild disciplinary measures shall initially be taken, and only in the case ofrenewed 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 ora 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 forimmediate 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 maypresent 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


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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 theBundeswehr 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 thejudge 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. If the judge has ordered for immediate enforceability, complaints may be filed before theend of one night.

2. A complaint shall suspend the enforcement of a disciplinary measure, if the soldierconcerned has submitted it before its enforcement commenced. The soldier shall be

informed about the time of the commencement in good time, normally when the


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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.

4. 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 underappeal 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.

5. 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.

6. The decision on the complaint shall not result in the imposition of a stricter disciplinarymeasure.

7. If a disciplinary measure is mitigated or revoked in the course of a complaint, it shall besimultaneously decided, pursuant to 54, on the allowance for the enforcement and

compensation for an impermissibly enforced disciplinary measure.

8. 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 evidencesurface.

9. 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.

10. If a decision on the complaints of a soldier against several disciplinary measures is takensimultaneously, the breaches of duty which underlie every disciplinary measure shall, in

deviation from 18, section 2, each be punished as a single disciplinary offense.

11. 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


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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 anddirectives, 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 wouldconstitute 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 theimposition.

(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/shemay 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 anapplication 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 tosubsection 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


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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.

45Proceedings for the Revocation or Alteration of a Disciplinary Measure

(1) The Military Service Court shall decide on the application for revocation or mitigation of adisciplinary 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 appealproceedings against the disciplinary measure.

46

Supervision

(1) The next in rank disciplinary superiors shall supervise the disciplinary superiorssubordinate to them in their exercise of disciplinary authority.

(2) Disciplinary measures that have been imposed by disciplinary superiors shall be revoked,

if:

1. They have been imposed by a disciplinary superior who had no cognizance

2. Their type or severity is not provided for in the law

3. A disciplinary measure has already been imposed on the soldier for the same disciplinary

offense ( 18, section 1)

4. The disciplinary superior has transgressed his/her disciplinary authority ( 28)

5. 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)

6. The disciplinary offense could no longer be subject to punishment due to lapse of time (17, section 2)

7. The soldier has not been granted a previous hearing ( 32, section 5, subsection 1)

8. 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)

9. The disciplinary arrest has been imposed without the approval of the judge ( 40, section

1)


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(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 theauthority 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


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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, themilitary 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.


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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 arule, 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 thesoldier, 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 theduration 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 securityduring 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 everyday 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 orformer 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) In the case of a revocation of a severe reprimand, 42, no. 9 shall apply mutatis mutandis.

(6) Section 1 to 5 shall also apply to the cases pursuant to 22, section 2.

(7) The Military Service Court which has partly or wholly revoked the disciplinary measure


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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.

55Improvised Measures for Disciplinary Arrest

(1) In the case of disciplinary arrest, improvised measures shall be permissible, if, inconsequence 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 towhat 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:


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1. Reduction of emoluments

2. Debarment from promotion

3. Reduction in pay grade

4. Demotion

5. Disciplinary discharge

(2) Judicial disciplinary measures against retired soldiers and former soldiers who are deemedretired soldiers ( 1, section 3) are:

1. Cut in pension

2. Reduction in pay grade

3. Demotion and

4. 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. Demotion

2. 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 ifit 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) The Military Service Courts shall also be entitled to impose simple disciplinary measures.

(7) 38 and 39 shall also apply to disciplinary court proceedings.


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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 tofive 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/herrank 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 ofa 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.


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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 supportcontribution 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


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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.

67Disciplinary Measures against former Soldiers who are deemed Retired Soldiers

(1) For former soldiers who are deemed retired soldiers ( 1, section 3), the cut in pensionconsists 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 inthe 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 againstsoldiers 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


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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 eachBundeswehr Disciplinary and Complaints Court division a court office shall be set up. Thecentral 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 thecourt.

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 noresidence 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 reque