U.S. v. Josey, 58 M.J. 105

First Principles: Constitutional Matters: Double Jeopardy

1. service members are protected with respect to each of the three components of the constitutional prohibition against double jeopardy: (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 issue of multiple punishments presents a unique situation in the military justice system because the court-martial process serves disciplinary as well as criminal law functions; a critical element of the disciplinary process involves the authority to include in the sentence certain elements that affect military personnel administration, such as forfeiture of pay, restriction to specified limits, reprimands, reduction in grade, and punitive discharges

Trial Stages: Sentence and Punishment: Credits

1. the conversion formula set forth in the MCM for crediting improper confinement under R.C.M. 305(k) provides an appropriate measure for crediting various types of punishment for purposes of former jeopardy, including confinement, hard labor without confinement, restriction, forfeitures, and fines
2. R.C.M. 305(k) does not provide a conversion formula for reduction and punitive separations because these penalties are so qualitatively different from confinement that the fact that an accused has served confinement which was technically illegal should not automatically affect these forms of punishment
3. we do not read North Carolina v. Pearce, 395 U.S. 711 (1969), as requiring 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
4. as a matter of federal law, compensation generally is not provided to persons who serve time in confinement as a result of an initial trial that is set aside, even if a subsequent proceeding results in acquittal, a sentence to no confinement, or a sentence to confinement for a period shorter than the initial sentence; federal law provides only a very limited opportunity for persons wrongly convicted in federal civilian criminal trials to obtain damages or attorneys fees
5. we conclude that reprimands, reductions in rank, and punitive separations are so qualitatively different from other punishments that conversion is not required as a matter of law for former-jeopardy confinement credit
6. the issue of whether a member of the armed forces should or should not receive a punitive discharge reflects a highly individualized judgment as to the nature of the offense as well as the person’s past record and future potential, and does not lend itself to a standard conversion formula; similar considerations apply with respect to reprimands, which have no direct monetary consequences, and reductions in rank
7. the absence of reprimands, reductions, and separations from the conversion formula in the MCM under R.C.M. 305(k) reflects the traditional exclusion of such punishments from standard conversion tables in prior editions of the Manual

Trial Stages: Initial Review: Action

1. although a convening authority may commute a punishment such as a punitive discharge into another form of punishment under Article 60(c), UCMJ, such action is a matter of command prerogative; commutation involves a reduction in penalty rather than a substitution, and it is highly case-specific; there is no formula guiding such action that could provide a standard formula for former-jeopardy credit
2. a convening authority has broad authority to commute a sentence into a different form so long as it involves a reduction in penalty; although a convening authority reviewing a case upon remand is not required as a matter of law to convert a reprimand, reduction in grade, or punitive separation to another form of punishment for purposes of providing former-jeopardy credit, the convening authority is empowered to do so as a matter of command prerogative under Article 60(c), UCMJ