What are the regulations for double jeopardy under UCMJ?

SGT Private RallyPoint Member — Sun, 13 Jan 2019 17:36:15 -0500

So my SPC and I were driving in the field, I was TCing. We were stopped at a checkpoint in the field by MPs and were given a citation for not wearing a seatbelt. Later that night out battery commander told our PL to counsel us for it.
In the counseling our Plan of Action was to: Ensure we wear seatbelts at all times under post rules, check our platoons seatbelts before every roll out, and that if we do it again they would recommend us for UCMJ. Okay, cool.
So the next day Brigade Commander puts out that seatbelt violations will now be Article 15s. Okay cool.
Now here I am getting a field grade and CSM says it's not double jeopardy because one was corrective action and this is punishment.
What are my options, help.

Response by CSM Charles Hayden made Jan 13 at 2019 6:53 PM

CSM Charles Hayden — Sun, 13 Jan 2019 18:53:15 -0500

One incident? Bde announcement came out the day after?

Take dated copies of the DR and the announcement with you.

Prove the announcement was after the fact, and that you were counseled for the infraction.

Black and and white helps a lot.

Response by Sgt Aaron Kennedy, MS made Jan 13 at 2019 6:55 PM

Sgt Aaron Kennedy, MS — Sun, 13 Jan 2019 18:55:36 -0500

1. Talk to legal. That's what they are there for.
2. This isn't "double jeopardy" (5a: "...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...", which is generally held not to apply to the military in its entirety due to the preceding clause "except in cases arising in the land or naval forces.")
3. A counselling statement does not preclude further action at the NJP or CM level. That's usually a bullet point on the counselling sheet.

Response by SSG Brian G. made Jan 13 at 2019 7:28 PM

SSG Brian G. — Sun, 13 Jan 2019 19:28:27 -0500

This is not double jeopardy. This is a case of something happening, you getting counseled and later an action plan being put into place and then you getting hit with the consequences. Double jeopardy would be if you did something off post, got dinged for it by the locals and then later dinged by your command, but that is another matter.

As for your options? You were caught and counseled. Acquire that paperwork. Then acquire a copy of the directive about seat belts from Bde. Then the paperwork informing you of your FG AR 15 and take all that to JAG. From there see what they say. It should be dropped.

Response by 1LT Private RallyPoint Member made Jan 13 at 2019 9:35 PM

1LT Private RallyPoint Member — Sun, 13 Jan 2019 21:35:29 -0500

I have studied criminal law in college and I know for a fact you can not punish someone if they commit a crime or break the law before the policy/punishment was put into place. For example, you were not wearing your seat belt, the next day the commander stated seat belt violations will now be processed as an Article 15. This means that the policy/law is from the day he stated that not wearing a seat belt will now be an Article 15, so you should not be punished for an Article 15. In addition, the PL told you that you were not going to receive UCMJ. I would either bring this up your chain command. If they do not help, you should go to IG or someone that could possibly help you in this situation.

Response by SGT Joseph Gunderson made Jan 14 at 2019 7:41 AM

SGT Joseph Gunderson — Mon, 14 Jan 2019 07:41:45 -0500

Your CSM is correct. Counseling Corrective Actions are not punishments under UCMJ; the fact that an NCO doesn't know this is disconcerting. However, CSM Charles Hayden may have your saving grace right there. If you only had the one instance of getting in trouble but there was an order published after the fact, it should not be able to be retroactively applied.

Response by SFC(P) Private RallyPoint Member made Jan 14 at 2019 8:10 AM

SFC(P) Private RallyPoint Member — Mon, 14 Jan 2019 08:10:34 -0500

Everyone has given great advice on here especially the LT. If this was me i would make sure to have everything on black and white talk with JAG see what they say.
If the command still wanted to push an NJP on me for something i did (Especially a seatbelt infraction oh boy have i been in 1151's ect where the seatbelt wasnt even there and my COC said roll with it) before a policy was in effect i would deny NJP and go to court martial but that is me.

Response by SPC David S. made Jan 14 at 2019 12:48 PM

SPC David S. — Mon, 14 Jan 2019 12:48:45 -0500

You were cited by MP's - guessing DD 1408? Is so administrate traffic court is run by the garrison. I see the points being made that counsel is corrective action as well Bde in deciding to handle the punitive side by way of Article 15 - however the policy went into affect after you were cited for the infraction. While you already addressed the corrective action side you still haven't gone to court/dealt with the punishment side. Regardless it would still seem logical that the new policy would only apply to infractions that accrued after the date the new policy was released.

I'd get all the paper worked gather up - with dates - and go see JAG.

Response by MSgt Steven Holt, NRP, CCEMT-P made Jan 14 at 2019 12:50 PM

MSgt Steven Holt, NRP, CCEMT-P — Mon, 14 Jan 2019 12:50:10 -0500

And here we have another example of why DoD is hemorrhaging quality troops as fast as they can ETS.

Were you in the wrong (according to policy/regulation/rules)? Yes. Was it double jeopardy? Probably not since the corrective action is not, by definition, "punishment". IMO, handing out A15 action for a single infraction is a bit heavy handed unless you were a problem troop who constantly has the attention of the 1SG, CSM, and/or Commander.

Regardless, I'd take all associated paper trail to the Area Defense Counsel (ADC) before signing anything. I'm not an attorney, nor did I stay at a Holiday Inn Express last night, but attempting to hand out punishment for an infraction before a published policy was put in place doesn't seem right somehow. Of course, the BDE could argue Article 92 was already in force and could use that to justify A15 action.

Response by SFC Bill Snyder made Jan 14 at 2019 6:50 PM

SFC Bill Snyder — Mon, 14 Jan 2019 18:50:56 -0500

WOW, what a chicken outfit. I spent over 30 yrs in Civilian Law Enforcement and wrote my share of tickets that were pretty heavy in the pocketbook. I also let more then I wrote go with a small lecture. Officer Discretion.

Response by PFC Elijah Rose made Jan 15 at 2019 12:57 PM

PFC Elijah Rose — Tue, 15 Jan 2019 12:57:14 -0500

You're commanders are a**holes, and/or someone with friends in high places really doesn't like you.
No, it legally is not double jeopardy, that only applies to when crimes go to trial. I saw a case similar to yours where someone's article 15 for fighting (this was basic) was changed to a chapter due to the brigade commander witnessed a fight brrak out (no joke) and enacted a zero tollerance policy 6 weeks later and the guy's drill sergeant wanted to be able to say he followed the orders without actually doing anything about the root problem. It is interesting that to me that nonjudicial punishments and chapters are often much harsher than UCMJs despite not even being a criminal court and having no actual rules.
You might just have to take field grade, but you also will want to get moved to a different unit. BTW, don't be afraid to tell people exactly what sort of stupidity this whole thing is.