U.S. v. Bracey, 56 M.J. 387

Core Criminal Law Subjects: Defenses: Former Jeopardy

1. 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

Trial Stages: Sentence and Punishment: Credits

1. 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

Trial Stages: Appeals: Waiver

1. 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

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. where the record indicates that clenching his fists and looking away from his platoon leader were separate actions from disobeying an order to stand at attention, neither the Constitution nor the UCMJ precludes a person from being convicted for multiple offenses growing out of the same transaction, so long as the offenses are not multiplicious

Miscellaneous Matters: Nonjudicial Punishment (Article 15): Charges Based on Prior Nonjudicial Punishment

1. 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
2. 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
3. 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
4. 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