Army Trial Defense Service protects Soldiers
August 27, 2008
Double Jeopardy isn't just the second round of a television game show. It also deals with how people are protected from repeated prosecution and punishment for the same crime. The principles of double jeopardy come from the Fifth Amendment of the U.S. Constitution and serve to protect all U.S. citizens, including Soldiers subject to the Uniform Code of Military Justice. However, there are some situations where the Fifth Amendment does not provide total protection from successive punishments.
Double jeopardy applies only to judicial criminal proceedings. An Article 15 is an administrative action or "nonjudicial proceeding" that does not result in criminal convictions. Therefore, the Fifth Amendment does not prevent a Soldier from receiving a court-martial conviction for conduct formerly punished under Article 15 proceedings.
While prior nonjudicial punishment is not a bar to subsequent trial by court-martial, under the Rules for Courts-Martial, a Soldier can request dismissal of a charge(s) for prior punishment if the Article 15 dealt with a "minor offense." A minor offense is generally defined as the type of misconduct that can be punished by a dishonorable discharge or confinement for more than one year.
Additionally, Soldiers who have received Article 15 punishment may request credit for the former punishment or restriction, or ask that it be considered in mitigation. Once a Soldier receives Article 15 punishment for an offense, he or she cannot receive another Article 15 for the same offense.
Similarly, the Fifth Amendment also does not prevent a Soldier from receiving a court-martial conviction for conduct prosecuted by a state or foreign court. The reason for this is the rule of separate sovereigns. A state court gives a state government conviction, but that does not prevent the federal government from giving a separate federal government conviction. Similarly, here in Korea, the Korean courts can prosecute a servicemember for off-post criminal conduct, but the Constitution does not prevent later prosecution for the same misconduct by the military. Korea is a separate government, a "separate sovereign," so there is no constitutional restriction against later punishment under the UCMJ.
Although complicated, double jeopardy is an extremely important constitutional protection that may impact Soldiers differently from regular citizens. Soldiers facing disciplinary actions are encouraged to contact the Trial Defense Service (TDS) with questions regarding their constitutional rights. TDS counsels are mindful of Soldiers' constitutional protections, and can provide valuable information on whether the double jeopardy protection applies in a particular case.