U.S. v. Mead, 72 M.J. 479

Trial Stages: Sentence and Punishment: Credits

1. 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
2. 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
3. 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

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

1. 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
2. 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
3. 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
4. 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