Posted on Oct 14, 2015
Can someone be recommeneded twice for the same exact charge if the first time it was thrown out?
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If a soldier was recommeneded for UCMJ for a certain incident and the DA Form 4856 was reviewed by legal but was denied because of the manner in which the counseling/recommendation was given, can someone be once again charged with that same exact charge (on another record of proceedings under article 15 form)?
Legal Services
CG-LGL10: Legal
UCMJ
Article 15
Posted 9 y ago
Responses: 10
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Absolutely.
The DA 4856 is simply a notification to the Service Member that they are being referred to the legal process. It does not have any bearing on the facts of the case or whether or not the Soldier "did it". It is a Chain-of-Command tool, and in and of itself doesn't carry the weight of a charge, it just checks the box of notifying the Soldier of what they are facing. Once in the legal process, if the Soldier is not handled properly or not afforded their rights, it is a whole 'nother ball game and a competent defense attorney could get charges thrown out on technical grounds.
The point is that the Soldier is properly informed, and in order to meet that test certain "magic words" need to be included. SJA most likely wanted the Commander to phrase things a certain way.
Don't hang your hat on this defense, it will not be a winner. I have seen several try this tack over the years, and it has never worked for them.
The DA 4856 is simply a notification to the Service Member that they are being referred to the legal process. It does not have any bearing on the facts of the case or whether or not the Soldier "did it". It is a Chain-of-Command tool, and in and of itself doesn't carry the weight of a charge, it just checks the box of notifying the Soldier of what they are facing. Once in the legal process, if the Soldier is not handled properly or not afforded their rights, it is a whole 'nother ball game and a competent defense attorney could get charges thrown out on technical grounds.
The point is that the Soldier is properly informed, and in order to meet that test certain "magic words" need to be included. SJA most likely wanted the Commander to phrase things a certain way.
Don't hang your hat on this defense, it will not be a winner. I have seen several try this tack over the years, and it has never worked for them.
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Yes, it sounds like the form you mentioned is simply a "Charge Sheet" not an actual record of punishment.
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