Can someone be recommeneded twice for the same exact charge if the first time it was thrown out?

2015-10-14T09:19:33-04:00

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)?

Response by SCPO David Lockwood made Oct 14 at 2015 9:22 AM

2015-10-14T09:22:10-04:00

From my experience only if it is a separate incident.

Response by MSG Private RallyPoint Member made Oct 14 at 2015 9:43 AM

2015-10-14T09:43:50-04:00

This is a JAG question. Go see your JAG office.

Response by SGT Bryon Sergent made Oct 14 at 2015 9:47 AM

2015-10-14T09:47:19-04:00

Depends on the charge and recurrence IHM.

Response by 1SG Private RallyPoint Member made Oct 14 at 2015 10:31 AM

2015-10-14T10:31:47-04:00

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.

Response by Capt Mark Strobl made Oct 14 at 2015 1:26 PM

2015-10-14T13:26:22-04:00

Being recommended for courts martial is not the same as going. The prosecution can levy as many charges as many times as the court will allow. You can only be tried once.

Response by SFC Mark Merino made Oct 14 at 2015 3:46 PM

2015-10-14T15:46:33-04:00

Get to JAG.

Response by 1stSgt Eugene Harless made Aug 14 at 2016 4:56 PM

2016-08-14T16:56:30-04:00

Yes, it sounds like the form you mentioned is simply a "Charge Sheet" not an actual record of punishment.

Response by CPT William Jones made Apr 26 at 2020 1:23 PM

2020-04-26T13:23:06-04:00

I have been out a long time but would think that you can be investigated lots of times for the same thing and according to our system are presumed innocent until charged and a jury verdict rendered after that it becomes double jeopardy. not being a lawyer I would think until that happens you could be charged and tried.

Response by SSG Paul Headlee made Jul 28 at 2020 3:17 PM

2020-07-28T15:17:11-04:00

Oh yeah! Even in civil or criminal court a defendant can be re-tried as in the case of a hung jury. The UCMJ is not hampered by whether the plaintiff dots their i's or crosses their t's. Do the right thing and it will always be someone else's problem.

Response by CPT William Jones made Oct 23 at 2020 5:09 PM

2020-10-23T17:09:14-04:00

I would say unless a person was charged extra can still be charged again and the process completed. It is not double jeopardy until action other than dismissal is taken.