In two cases, the Court of Military Appeals has considered the propriety of the imposition of Nonjudicial Punishment (Article 15) for offenses which have already been litigated (at least to some degree) before a court-martial. A reading of these cases would appear to indicate that the question of whether the offense may lawfully be taken to Nonjudicial Punishment (Article 15) following a court-martial will depend upon whether trial on the merits had begun on the offenses at court-martial prior to the imposition of Nonjudicial Punishment (Article 15).
In Dobzynski v. Green, 16 M.J. 84 (C.M.A. 1983), a charge of possession of marijuana was referred to special court-martial. After the military judge granted the defense motion to suppress the marijuana, the convening authority withdrew the charge and imposed Nonjudicial Punishment (Article 15) upon the accused for the offense. As the accused was then attached to a vessel, he was unable to refuse the Nonjudicial Punishment (Article 15). On petition for extraordinary relief before the Court of Military Appeals, the accused argued that the military judge violated his due process rights by allowing withdrawal of the charge after arraignment and prior to the presentation of evidence on the merits. In denying the petition for extraordinary relief, the court held not only that the military judge properly allowed the withdrawal, but also that the "convening authority acted in accordance with the law and within his discretion in withdrawing the charges from the special court-martial."
In Jones v. Commander, Naval Air Force, U.S. Atlantic Fleet, 18 M.J. 198 (C.M.A. 1984), the accused's motion for a finding of not guilty was granted by the military judge following the presentation of the government's case-in-chief. The convening authority then imposed Nonjudicial Punishment (Article 15) upon the accused for substantially the same offense. Here, the court again denied the petition for extraordinary relief, but in dicta condemned the imposition of Nonjudicial Punishment (Article 15) following the earlier court-martial conviction as an "unreasonable abuse of command disciplinary powers which cannot be tolerated in a fundamentally fair military justice system.
Significantly, both Dobzynski, supra, and Jones, involved offenses committed and punished prior to 1 August 1984. For cases arising after this date, the provisions of section 1-A-5d of the Military Judges Manual would apply. This section provides that "(p)ersonnel who have been tried by courts that derive their authority from the United States, such as U.S. District Courts, shall not be tried by court-martial or be the subject of nonjudicial punishment for the same act or acts" (emphasis added). Assuming that the term "tried" as used in MJM 1-A-5d means that point in the trial after which jeopardy would attach and prevent the referral of charges to a subsequent forum. Thus, Nonjudicial Punishment (Article 15) would be barred for an offense previously referred to court-martial at which jeopardy had attached and which could not be retried at a subsequent court.