Article 134

[Brett327]

Brett, to go further with Bevo's question...

If Seaman Jones gets stopped by the local PD, off duty, just outside of base (on the way in) for lets say disturbing the peace or public intoxication (D&D) and is issued a citation... then Seaman Jones enters the base and is subsequently stopped by a military policeman and charged with D&D, does the 2nd D&D fall under double jeopardy? It was the same crime, charged in separate places with separate jurisdictions and a separate time.

It seems like in that situation both charges and punishment from both jurisdictions apply because they are separate occurances.

From what I understand that you are saying, if Seaman Jones gets arrested for public intoxication in a bar off base (especially in Texas now, watch out) and his Commanding Officer happened to be at the bar and witnessed it... the CO can not charge him with a crime, the most the CO can do is recommend counseling for alcohol.

How did you become a Legal Officer Brett, that sounds like it could be an interesting job. Was that your side job in your squadron?

Interesting hypothetical. What really happens would depend on the actual facts, but I suppose you could argue that two different crimes occurred, thus DJ would not be at issue. To make the analogy more clear, let's change the D&D to two separate murders, one off base and the second on base - two jurisdictions, and two crimes. Now, in reality, big stuff like that might mean the authorities would decide to try everything within one court, but that degree of coordination would be rare at best for minor offenses like DUI.

As for LO, it's something your command is going to decide for you and send you to the school. Schnugg is right to a certain extent, but LO gets a bad rap. It is one of the most challenging JO jobs, but the advantages are that you learn a whole bunch about how the military justice system works, plus you get a ton of face time with the front office, so assuming you don't screw your job away, that can be a great opportunity to shine in their eyes. Definitely a job with lots of rope with which to hang yourself, and you'll end up getting lots of late night phone calls.

Brett

 

[The Chief]

Horse hockey.

Drunken driving by that Senior Chief is prejudicial to good order and discipline! While the Civ's cannot charge said Chief with actions being PGOD at his/her Command, they can address the DUI portion of it, convict or acquit, as it fits. As I said, the Command should not bring charges for the DUI part, I said SHOULD NOT, I do know there have been incidents in the past where that has happended, but would agree it is wrong. However, we, I SAY AGAIN WE, need some mechanism to maintain GOD (good order and discipline). hence we can charge under Art 134 for that incident, not as DUI, which one could argue is technically the same offense, but the prejudicial aspect of it.

 

[webmaster]

Concur with Brett's comments....

Couple other thoughts:

What does REGION have to say? In a number of cases, there will be guidance from the JAGs at COMMANDER NAVY REGION XXXX, that have bearing on how CO's implement their NJP. For instance, policy while I was a lawdog in Hawaii, was to only handle onbase DUIs, and allow the local judicial system to handle anything outside the gate.

There are also a couple differences between NJP vs Courts Martial that Brett mentioned, "the burden of proof at NJP is the preponderance of evidence". It could be that Seamon Dirtbag was seen drinking a six pack by Seaman Jones and a couple of his friends that he refuses to identify. The CO can take in all the statements and impose his NJP..... but the key here is that the smart perp, would force the command's hand, and request a Courts Martial where the verdicts are more severe, but the supporting material to meet the charges is also more stringent. Always, always, always be prepared as a Legal Officer to take a case to Courts Martial, if it is a weak case and the CMC is pushing the CO to throw the book at the kid, make sure you earn your paycheck and bring a reality check to the equation.

Also, in my experience, depending on the local law enforcement, you might not get the results you need. I tried on many occassions to get supporting material, but was rebuffed by local law enforcement (even going through our Military Liaison down at the Police Department). They were very concerned with handling it out in town, vice turning it over to the Military. Flip side, on deployment, many places were happy to hand the sailors back over to us for NJP.

Legal Officer is not generally a job that you pick for yourself, but unfortunately one that is identified for YOU while in the FRS. As Brett mentioned, it definitely has its pluses, and as Schnugg alluded to, its minuses. You do well in the job, you are stuck with it for quite awhile (they don't want to replace you), do poorly, and you will get fired FAST!!! Also, once a legal officer, always a legal officer, since they will reach back and grab you after you move into another job, once you have shown a "talent" for it.

 

[RockyMtnNFO]

Bum Gouge Alert

Double jeoapardy does not apply to any local, state or foreign court.

See the JAGMAN 0124 regarding prior civil action.

While it is not automatic, nor should it be, there are procedures for administering military justice for the SAME offense.

NJP or Summary Court Martial, require a General Court Martial Convening Authority's permission to proceed.

Special Court Martial or General Court Martial require OJAG permission to proceed.

 

[TXHusker05]

To go along with what RockyMtn said, according to Manual for Court Martial, Rule 201(d)(2):


"An act which violates both the code and local criminal law, foreign or domestic, may be tried by a court martial, or by a proper civilian tribunal OR subject to RCM 907(b)(2)(C) and regulations of the Secretary concerned, both."

Now, I think RCM 907(b)(2)(C) answers all of our questions for this subject. (Rule 907 concerns motions to dismiss a case). A case will be dismissed in the event that (my side notes are in red):

907(b)(2)(C) - The accused has previously been tried by court-martial or FEDERAL civilian court for the same offense, provided that:

i) No court-martial proceeding is a trial in the sense of this rule unless presentation of evidence on the general issue of guilt has begun. From what I gather on this rule, if a court-martial for a certain crime is convened and dismissed BEFORE evidence is admitted, then another court-martial can be convened for the same offense.

ii) No court-martial proceeding which has been terminated under RCM 604(b) or RCM 915 shall bar later prosecution for the same offense or offenses.

RCM 604(b) states that: Charges which have been withdrawn from a court-martial may be referred to another court-martial unless the withdrawl was for an improper reason. Charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawl was necessitated by urgent and unforseen military necessity.

RCM 915 covers mistrials which doesn't apply to the conversation.

iii) No court-martial proceeding in which an accused has been found guilty of any charge or specification is a trial in the sense of this rule until the finding of guilty has become final after review of the case has been fully completed. One of you LO's will need to explain this one to me, from what I understand... even if a jury finds a person guilty, they aren't officially guilty until the case is review.

iv) No court-martial proceeding which lacked jurisdiction to try the accused for the offense is a trial in the sense of this rule. That pretty much means if a person was tried in a court of law which did not have jurisdiction (i.e. a civilian court for a military crime) than that case can (and will) be dismissed but the court which has jurisdiction can re-try the case without application of double jeopardy.

I can keep looking in the RCM for rules concerning double jeopardy and jurisdiction but I think that covers the bulk of the issue on double jeopardy. There are bound to be a few JAGMAN findings that also address the issue. I am not a lawyer or legal officer, so if some of you LO's know something I missed or made a mistake on... please correct me. I know my way around the MCM and UCMJ but I am definitely not an expert by any means.

Brett, I am going to send you a PM in a bit asking you about the Legal Officer position.

 

[RockyMtnNFO]

Being a legal officer is a great job if you are already qualified.

If you are working on getting qualed, it can break you. I can speak for P-3's only, but we usually had a guy that was already qualified as legal officer. A patrol squadron is a large command and there is always something going on; legal stuff does not get better with age and you need to be on the ball.

You do, however, get a lot of face time with the CO/XO and if you do well it can really boost a fitrep or chances for good orders.

My only complaint about being the legal officer, is that I like to think the best of people and you end learning about all the crummy things that people in your command are doing. Same thing goes as divo, but you only worry about your division, not the whole command.

 

[TXHusker05]

How do you get qualified? Do you need to go to the NJS?

 

[Brett327]

Brett, I am going to send you a PM in a bit asking you about the Legal Officer position.

Good times. There are lots of questions and different issues in your post, many of which are beyond the scope of this forum (and my patience to answer). Suffice it to say that the military justice system is as complex as its civilian counterpart and there are exceptions, appellate procedures, and oversight for just about any procedure.

Brett

 

[DimndDave14]

So let me get this straight. If the hypothetical situation like I stated before does happen. They can say naughty, naughty you did not maintain good order and discipline and get an Article 134. If that is the case then what is the point of having a legal blood alcohol limit. Why is not have one drop of alcohol and you get a DUI or one drop of alcohol and your screwed?

 

[Brett327]

So let me get this straight. If the hypothetical situation like I stated before does happen. They can say naughty, naughty you did not maintain good order and discipline and get an Article 134. If that is the case then what is the point of having a legal blood alcohol limit. Why is not have one drop of alcohol and you get a DUI or one drop of alcohol and your screwed?

Precisely why that perp would hypothetically opt for a CM and not NJP. Obviously, you're taking the example to the extreme, but part of the job of the commander is to exercise discretion in what they feel is good for the command as a whole. Likewise, the perp has a right to take the case to higher authority if they feel the commander is acting in an unreasonable or unlawful manner. In real life, it's rarely that complicated.

Brett

 

[DimndDave14]

In real life, it's rarely that complicated

You would think, but. :icon_hamm

 

[HooverPilot]

ok, it took a while, but here is the FFC message I talked about earlier. It starts NJP as soon as charges are filed. No more waiting for the civilian courts to adjudicate before NJP. Not sure how it applies to the Marines though. Legal O's, fill us in!

UNCLAS //N05350//
MSGID/GENADMIN/COMUSFLTFORCOM//
SUBJ/UCMJ ACTION REGARDING DUI AND DWI// REF/A/GENADMIN/COMLANTFLT/041929ZFEB2003//
REF/B/DOC/JAG/15MAR2004//
REF/C/GENADMIN/SECNAV/062108ZDEC1996//
REF/D/DOC/OPNAV/01JUN1995//
NARR/REF A IS COMLANTFLT GENADMIN 041929ZFEB03. REF B IS JAG INST 5800.7D, JAGMAN ART 0124. REF C IS ALNAV 080/96, DWI POLICY.
REF D IS OPNAV INST 3100.6G, SPECIAL INCIDENT REPORTING PROCEDURES.// POC/MARIE C PARKER/CIV/FFC ADCO/-/TEL:757-836-3573 /EMAIL:MARIE.PARKER@NAVY.MIL// RMKS/1. THIS MESSAGE CANCELS REF A AND CHANGES FFC POLICY REGARDING DISCIPLINARY ACTION FOR DUI/DWI CASES. REFS B AND C PROVIDE ADDITIONAL GUIDANCE. ACTION ADDEES TAKE FORAC WITH SUBORDINATE COMMANDS.
2. DUI/DWI CONTINUES TO SERIOUSLY DEGRADE FLEET READINESS.
PAGE 03 RUCBCLF6145 UNCLAS
THIS IRRESPONSIBLE BEHAVIOR CAN HAVE FATAL CONSEQUENCES TO THOSE INVOLVED AND ALWAYS PLACES ADDITIONAL BURDENS ON SHIPMATES AND LEADERS. IN PURSUING INDIVIDUAL ACCOUNTABILITY AND TO SERVE AS A VISIBLE DETERRENT, THEODORE ROOSEVELT CARRIER STRIKE GROUP DEVELOPED A PILOT INITIATIVE THAT AUTHORIZED COMMANDS TO ADJUDICATE CASES OF DUI/DWI AT NJP OR COURT-MARTIAL PRIOR TO CIVILIAN ADJUDICATION. THIS PROVIDED COMMANDING OFFICERS WITH AN ADDITIONAL LEADERSHIP OPTION, REPEAT OPTION, IN ADDRESSING ALCOHOL ABUSE.
TRCSG OBSERVED A MEASURABLE DECREASE IN DUI/DWI CASES OVER THE SUBSEQUENT 6 MONTH PERIOD PRIOR TO THE CSG DEPLOYMENT.
3. BASED ON THE PILOT, COMMANDERS, COMMANDING OFFICERS, AND OFFICERS IN CHARGE ARE AUTHORIZED TO PURSUE NJP OR COURT-MARTIAL FOR DUI/DWI CASES PRIOR TO CIVILIAN ADJUDICATION AS AN OPTION IN THE RESOLUTION OF THIS TYPE OF DISCIPLINARY ISSUE. FOR UNITS DEPLOYED OUTSIDE OF CONUS, THEATER GUIDANCE ON FOREIGN CRIMINAL JURISDICTION CASES STILL APPLIES.
4. REPORTING REQUIREMENTS:
A. COMMANDS: IN ORDER TO STANDARDIZE REPORTING AND CAPTURE RELEVANT DATA FOR FURTHER ANALYSIS, INCIDENTS OF DUI/DWI ARE TO BE REPORTED VIA UNIT SITREP USING REF D, ADD COMFLTFORCOM NORFOLK PAGE 04 RUCBCLF6145 UNCLAS VA/N1/N1FA3/ TO THE INFO LINE.
B. ACTION ADDEES: COLLECT THE FOLLOWING DATA REGARDING DUI/DWI AND FORWARD TO FFC QUARTERLY. FFC WILL COORDINATE AND PROVIDE FLEET WIDE VISIBILITY OF POLICY RESULTS AND EFFECTIVENESS.
(1) NUMBER OF DUI/DWI INCIDENTS.
(2) NUMBER OF DUI/DWI INCIDENTS ADJUDICATED AT NJP/COURT-MARTIAL.
(3) RESULTS OF THOSE ADJUDICATIONS (REDUCTION IN RATE, FORFEITURE OF PAY, ETC.)
(4) NUMBER OF DUI/DWI INCIDENTS DEFERRED TO CIVILIAN COURT FOR ADJUDICATION.
(5) NUMBER OF CIVILIAN CONVICTIONS OF DUI/DWI.// BT