"Double" jeopardy

Under the UCMJ, a U.S. servicemember can be prosecuted at court-martial even when a state court has tried him--there is no U.S. Constitutional double jeopardy bar--two different sovereigns. This rule allows for court-martial even if the servicemember is tried and acquitted in a state civilian trial. Hennis (CAAF) is a good example. He was tried and acquitted of murder three times in a civilian court. Years later, advances in DNA led to a court-martial, a conviction, and he is awaiting a death sentence.

If the crime is handled in federal district court, then double jeopardy applies for (only) offenses handled in federal court--a court-martial and a federal district court are the same sovereign. There are cases of prosecutions in federal court and at court-martial, where the court-martial charges were not prosecuted in federal court, even when the charges arise from the same general conduct. However, United States v. Rice, 80 M.J. 36 (C.A.A.F. 2020), presents a cautionary tale. 

There is a Memorandum of Understanding between the Department of Defense and the Department of Justice that addresses who will prosecute when both parties to the memorandum have an interest in prosecution. 

Anyway, this brings us to a recent decision from the Supreme Court of India.

The Supreme Court on Wednesday (April 15) observed that once the defence forces have elected a continuation of criminal proceedings over the disciplinary proceedings, then acquittal in a criminal proceeding would bar the subsequent initiation of the disciplinary proceedings against a defence personnel. Setting aside the Delhi High Court's Division bench judgment, a bench of Justice Dipankar Datta and Justice KV Viswanathan restored the honour of an ex-Air Force personnel, with granting consequential service benefits nearly after three decades, who was subjected to a disciplinary inquiry post-acquittal in a criminal proceeding.

A U.S. servicemember prosecuted in state or federal court, regardless of an acquittal, may be administratively removed from the service, based on that conviction or acquittal. There are several "disciplinary" processes available to a commander, Service Secretary, or the President, depending on the person's rank.

A servicemember can be processed for an administrative discharge characterized as "service" Under Other Than Honorable Conditions (OTH). He is entitled to Fifth Amendment due process through a hearing, counsel, and the opportunity to present evidence. An OTH carries both stigma and adverse employment and social consequences — this is not a Dishonorable Discharge adjudged at a court-martial, but the effects are the same. The basis is for separation is the commission of serious misconduct. Whether there is an acquittal is largely irrelevant because it's the underlying conduct that matters. Acquittal is generally not considered a finding of innocence, especially where the standard of proof in an administrative hearing is by a preponderance of the evidence.

For a convicted officer sentenced to confinement, the President can drop him from the Rolls and sever his connection to the military--even if retired at the time of the conviction. Another option may be a reduction in rank upon or in retirement. Grazioplene is  a useful example. A major general convicted of serious offenses, committed while on active duty, after retiring, was reduced to the rank of second lieutenant in retirement (the lowest officer grade). See 10 U.S.C. § 1161(b), read with 10 U.S.C. § 1167 (see para. 1161(a)(3)). Note that in Clinton v. Goldsmith, 526 U.S. 529 (1999). The Supreme Court described the drop-from-rolls action as an executive/personnel action, not part of the court-martial findings or sentence, and held that the Court of Appeals for the Armed Forces lacked jurisdiction to enjoin it under the All Writs Act.

The Supreme Court of India also "ordered the grant of a farewell for him." Interesting that the court can order a retirement ceremony and follow-on party.

Click here to download judgment:

https://www.livelaw.in/supreme-court/air-force-act-disciplinary-proceedings-cant-be-initiated-against-officer-discharged-in-criminal-trial-on-same-charge-supreme-court-530476