This case is before the court on defendant’s motion to dismiss (no. 6). At issue is whether the United States government, consistent with the constitutional requirement of due process, may prosecute a military servicemember in a civilian court for a crime committed on a military installation when the servicemember (a) has already received “non-judicial punishment” pursuant to Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815 (“Article 15”); (b) has thereby waived his right to trial by court martial; (c) has not been told that he would be prosecuted in a civilian court anyway; and (d) could have foreclosed both non-judicial punishment and the civilian prosecution by asserting his right to a court-martial. While defendant argues several grounds for dismissal, the court grants the motion on the ground that under the circumstances presented here, this civilian prosecution violates defendant’s right to due process of law under the Fifth Amendment to the Constitution.

Anticipate some change in procedures at Quantico.

The parties stipulated at oral argument that Marine Corps Base Quantico is the only Corps installation on the East Coast, including all Marine Corps installations within the Fourth Circuit, at which servicemembers who are subjected to non-judicial punishment for minor offenses are subsequently prosecuted in federal district court. It does appear, however, that the practice is not unique to this military installation. See United States v. Trogden, 476 F.Supp. 2d 564 (E.D. Va. 2007) (servicemember who accepted non-judicial punishment for driving under the influence of alcohol on the grounds of a Virginia Army base was subsequently prosecuted in civilian court).

The court does not address United States v Pierce, 27 M.J. 367 (C.M.A. 1989). Part of the issue under Pierce would be whether the DUI is a “minor” enough offense.

If the servicemember has elected to receive disciplinary punishment rather than a trial by court-martial for the minor offense, the military may not prosecute the servicemember by court-martial. 2008 MCM Rule 907(b)(2)(D)(iv). This either-or condition of disciplinary punishment or trial by court-martial gives rise to the term “non-judicial punishment” to describe the former.

As to the Pierce issue, Article 15(f) states:

The imposition and enforcement of disciplinary punishment under this article for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this article; but the fact that a disciplinary punishment has been enforced may be shown by the accuse upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

This case conflicts with a decision in United States v. Burns, 29 F. Supp. 2d 318 (E.D.Va. 1998). Burns does cite to Pierce.

While this Court ultimately reaches the same conclusion as the parties, that prior NJP imposed on a defendant for an offense does not subsequently bar prosecution for the same offense by the United States based on double jeopardy grounds, the Court does so after an examination of more recent case law pertaining to the issue, as discussed below. In deciding this case, the Court looks at the analysis in a recent military case, United States v. Gammons, 48 M.J. 762 (1998), where the U.S. Coast Guard Court of Criminal Appeals had before it a case similar to the instant case. There, the defendant had received prior NJP for offenses and was later convicted by special court-martial of the same offenses. The Gammons court ultimately followed the holding in Pierce, and held that “prior nonjudicial punishment of a serious offense does not bar subsequent court-martial for the same offense on double jeopardy grounds.” Id. However, that court expressed in its opinion that it believed there might be changes in military case law required as a result of recent Supreme Court decisions, and that their holding was a result of having to “follow the military rulings until they are modified by [a] higher court.” Id. at 764.

The court finds that NJP is not a “criminal” punishment, and the Burns decision would seem to be more consistent with United States v. McKeel, 63 M.J. 81 (C.A.A.F. 2006).

Before this court, Appellant has assigned the following errors: I. The military judge erred when he denied the defense motion to dismiss Charges I and III for prior jeopardy. II. An unsuspended bad-conduct discharge is an inappropriately severe punishment for the crimes of which Appellant was convicted. III. Appellant’s Fifth and Sixth Amendment rights were denied when he was prohibited from recording the Article 32 investigation, and by the subsequent denial of his motion for a new Article 32 investigation. We exercise our Article 66, UCMJ authority and set aside the findings and sentence. Appellant was charged with Rape, arising from alleged conduct following a party while in the THETIS’s homeport of Key West, Florida. Following a contested trial, members found Appellant not guilty of the most serious charge of Rape, and found him guilty of only the Barbados criminal conduct for which he had already received punishment at Article 15 Captain’s Mast. Considering the facts of this case, we decline to reach the merits of the three Assignments of Error. Instead, we exercise our Article 66, UCMJ authority and set aside the findings in this case. We believe Appellant was appropriately punished for the criminal conduct at Barbados by the CGC THETIS Commanding Officer at Article 15 Captain’s Mast. Preserving convictions of the same (or lesser) offenses by court-martial does not strike us as necessary or attractive.

Smile, you’re on security cameras. Despite the field overhead of video surveillance at the exchanges aboard Camp Lejeune and Marine Corps Air Station New River, N.C., Marines are betting the odds they won’t get caught stealing. The number of active-duty Marines at those installations who were busted for shoplifting in 2009 is up 59 percent from the year prior, prompting Marine Corps Community Services officials to remind its uniformed clientele that paying for a can of chew will be easier on their wallet and their career.

The Marine Times reports.

I blogged a while back about shoplifting. The point came up with a piece from an Alaska newspaper. Did Iraq veteran’s PTSD spark his shoplifitng charge? By Julia O’Malley | Anchorage Daily News.