MISCELLANEOUS MATTERS: Nonjudicial Punishment (Article 15): Charges Based on Prior Nonjudicial Punishment

2013 (September Term)

United States v. Mead, 72 M.J. 479 (Article 15(f) provides that the imposition and enforcement of nonjudicial punishment for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable with nonjudicial punishment; but the fact that nonjudicial punishment has been enforced may be shown by an accused at trial, and when so shown, shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty). 

(Article 15(f) leaves it to the discretion of an accused whether the prior punishment will be revealed to the court-martial for consideration on sentencing; the accused is the gatekeeper with respect to consideration of an NJP record during a court-martial involving the same act or omission). 

(in this case, it was clear to the parties and the military judge that appellant raised the issue of the NJP for the military judge’s consideration as prior punishment for one of the charged offenses: (1) appellant stipulated to the NJP as part of his pretrial agreement; (2) he declined to object to the military judge’s statement that it appeared it would be necessary to provide credit against the adjudged sentence because of the NJP; (3) the defense declined to oppose the admission of the NJP during the sentencing hearing; (4) appellant declined to question the military judge’s calculation of the NJP credit or the adjudged sentence; and (5) appellant agreed with the military judge that the convening authority could approve a sentence that included confinement for two years; as such, the military judge considered the NJP and specifically awarded Pierce (27 MJ  367 (CMA 1989)) credit for it; neither Article 15(f) nor appellate case law grants appellant more).

(money forfeited as a result of the reduction in grade imposed at NJP is not punishment imposed by the NJP; rather, it is merely a consequence of the reduction in grade). 


United States v. McKeel, 63 M.J. 81 (the UCMJ preserves the authority of a senior commander to ensure accountability for misconduct by limiting the effect of nonjudicial punishment imposed by subordinates under Article 15, UCMJ; if a subordinate commander imposes nonjudicial punishment for an offense that is not minor, the senior commander is not precluded from referring the matter for trial by court-martial; when an accused receives a court-martial sentence for the same conduct that was punished at an Article 15 proceeding, the accused has the opportunity to request a sentence credit under United States v. Pierce, 27 MJ 367 (CMA 1989)). 



United States v. Bracey, 56 MJ 387 (the protections for military personnel against double jeopardy under the Fifth Amendment of the Constitution of the United States and Article 44, UCMJ, 10 USC 844, apply only to judicial punishments, not to nonjudicial punishments under Article 15; it is Article 15(f) that prevents the accused from being punished twice for the same offense as a matter of statutory law even though such successive punishment is otherwise permissible as a matter of constitutional law).

(the credit for NJP previously imposed is not automatic; the accused is the gatekeeper on the question as to whether an NJP for a serious offense will be brought to the attention of the sentencing authority, and failure to raise the issue of mitigation based upon the record of a previous NJP for the same offense prior to action by the convening authority waives an allegation that the court-martial or convening authority erred by failing to consider the record of the prior NJP).

(although United States v. Pierce, 27 MJ 367 (CMA 1989), precludes double punishment at NJP and court-martial for the same offense, it does not preclude multiple punishments for multiple offenses growing out of the same transaction when the offenses are not multiplicious).

(if appellant wanted to introduce facts and obtain a ruling that the NJP and the court-martial conviction were for the same offense, the time to do so was at trial, not on appeal).

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