U.S. v. Gammons, 51 M.J. 169

First Principles: Constitutional Matters: Double Jeopardy

1. the defense of former jeopardy in military law, as established in Article 44, UCMJ, does not extend to cases in which there has been prior nonjudicial punishment for the same act or omission; similarly, Article 15(f), UCMJ, provides that nonjudicial punishment is not a bar to trial by court-martial for a serious offense or crime growing out of the same act or omission
2. the complimentary goals of enhancing military discipline while reducing the adverse impact of convictions on servicemembers provide a rational, non-criminal justification for nonjudicial punishment, and the relatively modest penalties available under nonjudicial punishment are not so excessive as to transform nonjudicial punishment into a criminal proceedings under the Double Jeopardy Clause

Core Criminal Law Subjects: Defenses: Former Jeopardy

1. the defense of former jeopardy in military law, as established in Article 44, UCMJ, does not extend to cases in which there has been prior nonjudicial punishment for the same act or omission; similarly, Article 15(f), UCMJ, provides that nonjudicial punishment is not a bar to trial by court-martial for a serious offense or crime growing out of the same act or omission

Trial Stages: Sentence and Punishment: Evidence

1. failure to object to government’s reference to nonjudicial punishment imposed for same serious offense tried at court-martial constituted waiver under RCM 1001(b)(2); CAAF rejects plain error argument
2. where nonjudicial punishment and a court-martial involve the same offense, Article 15(f), UCMJ requires that the defense, not the prosecution, determine whether the record of nonjudicial punishment should be presented
3. Article 15(f)’s purpose, to prevent an accused from being twice punished for the same offense, may be enforced in either of two ways by an accused: (1) a motion to dismiss the charge on the grounds of former punishment for a minor offense; and (2) as the gatekeeper on the question of whether a nonjudicial punishment for a serious offense will be brought to the attention of the sentencing authority
4. as the gatekeeper on the question of whether a nonjudicial punishment for a serious offense which is also the subject of the instant court-martial will be brought to the attention of the sentencing authority, an accused may: (1) choose not to introduce evidence of a prior nonjudicial punishment and thereby preclude the prosecution from introducing or commenting upon the record; or (2) choose to introduce evidence of the prior nonjudicial punishment and open the door to prosecution evidence, consistent with the rules of evidence, that is necessary to ensure that the information pertaining to the nonjudicial punishment is accurate

Trial Stages: Sentence and Punishment: Credits

1. while differences in the nature of punishments may make reconciliation difficult, it is the responsibility of the military judge, convening authority, or Courts of Criminal Appeals, as the case may be, to ensure that an accused is given appropriate credit for any punishment suffered as a result of nonjudicial punishment previously imposed for an offense that is subject to sentencing at a court-martial

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the jurisdiction of the Court of Appeals for the Armed Forces does not extend to direct review of nonjudicial punishment proceedings