Double Jeopardy in the MilitaryMarch 30, 2020
Servicemembers are often curious about double jeopardy in the military. Unfortunately, it provides much less protection for those accused of misconduct than most think.
The basic principle of the double jeopardy clause is that no one can be punished twice for the same misconduct. It is found in the United States constitution. Applying double jeopardy to the military is complicated.
The military has many administrative tools at their disposal that are not considered punishment under double jeopardy analysis. For example, the following actions are considered administrative and not punishment: letters of reprimand, counseling statements, administrative separation proceedings, bad evaluation reports, being flagged while under investigation, denial of promotions, denial of transfers of duty stations, cancellation of orders, etc. What this means is that the military can take any and ALL of these actions for the same misconduct without even triggering any double jeopardy protection. For example, the Army can give an NCO a GOMOR, a relief for cause NCOER, and initiate separation proceedings, all for the same misconduct. While this may not seem fair, it does not violate the double jeopardy clause of the constitution.
Two types of military actions are considered punishment under the double jeopardy clause. Those two actions are nonjudicial punishments (article 15, mast, office hours) and courts-martial. However, even if a Servicemember receives an article 15, they can still be court-martialed for the same misconduct. A Servicemember who is facing a Court-Martial for something they already received nonjudicial punishment for would simply get a sentencing credit at trial.
The double jeopardy clause doesn’t even prevent the military from bringing a Servicemember to Court-Martial after a State Court has convicted him/her of the same misconduct. Under constitutional analysis, State Courts and Courts-Martial are considered separate sovereigns. They can therefore both convict the same person of the same misconduct. It is rare for this to happen, but it can.
The double jeopardy clause does protect a Servicemember from going through a Court-Martial after being convicted in Federal Court for the same misconduct. This is rare, but it can happen. It would also protect a Servicemember from being put through a Court-Martial a second time for the same misconduct, after a conviction at the first Court-Martial.
The bottom-line is that the double jeopardy clause provides little to no protection for most Servicemembers.
Any Servicemember accused of misconduct should immediately consult with an experienced military lawyer when suspected of any misconduct. While the double jeopardy clause may not be helpful, a good military lawyer can leverage previous “punishment” to prevent other action from being taken against a Servicemember.
This article was written by Attorney Matthew Barry