U.S. v. Rosendahl, 53 M.J. 344

First Principles: Constitutional Matters: Double Jeopardy

1. the constitutional protection against double jeopardy applies to three circumstances: (1) trial for the same offense after acquittal; (2) trial for the same offense after conviction; and (3) multiple punishments for the same offense
2. the current structure of the former-jeopardy provisions in the Code and Manual provides each of the three components of the constitutional prohibition against former jeopardy: (1) prohibition against trial for the same offense after acquittal; (2) prohibition against trial for the same offense after conviction; and (3) prohibition against multiple punishments for the same offense. See Articles 44, 63, and 75(a), UCMJ; RCMs 810(d)(1), 1002, and 1107(f)(5)(A)

Trial Stages: Sentence and Punishment: Credits

1. considerations similar to those governing credits for pretrial confinement under RCM 305(k) should govern application of former jeopardy credits for punishment imposed at an earlier court-martial
2. after a sentence is announced, and the terms of any applicable pretrial agreement examined, the military judge should consider the matter of proper credits for former jeopardy, including necessary equivalencies, and announce on the record how those credits shall be applied in the convening authority’s action
3. the convening authority will apply any credits for former jeopardy announced by the military judge and, to the extent necessary, may modify those credits to ensure proper and complete credit for former jeopardy
4. punishments such as reduction and punitive separation are qualitatively different from forfeiture and confinement; former jeopardy concerns do not require credit against punishments unique to military life where there is no readily measurable equivalence between confinement and the personnel-related punishments of reduction and punitive separation
5. where appellant served 120 days confinement pursuant to a court-martial sentence which was set aside and no confinement was adjudged at a rehearing, Court declined to apply former jeopardy credit against punitive discharge because confinement and punitive separation are traditionally distinct types of punishment and because the period of confinement to be credited was relatively short

Trial Stages: Initial Review: Action

1. the convening authority will apply any credits for former jeopardy announced by the military judge and, to the extent necessary, may modify those credits to ensure proper and complete credit for former jeopardy