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Still does not matter though, a service member cannot be tried twice for the same offense in accordance with Article 44. There is no spinning out of this, you will see the Marine will be tried in federal court, and he will not go through military court at all.
However, there is NJP which I am sure will be part of the separation process when they kick them out.
Mostly correct - Someone can be tried twice by different sovereign entities - someone tried in state or foreign court can still face federal or UCMJ charges for the same offense - this is often how they handle things like hate crime charges. Technically DOJ and DoD are same sovereign so they can not both charge for the same crime.
But there is some thought since the DOJ will not charge them with UCMJ offences that are not civilian offenses - such as conduct unbecoming.- that it is technically not double jeopardy to try these separate offenses under UCMJ. The UCMJ can be used to prosecute the crime under this concept if the DoD "believes that the crime involves special factors relating to the administration and discipline of the Armed Forces that would justify ..." - the concept has never been litigated though. But I don't think they would want to do it - no need - they can do the rest administratively (not NJP).
Just to be clear - you can't do NJP if can't do a Court Marshal - both are the same "court system" - it is one or the other, that is why sometimes service members will request a Courts Marshal for minor offenses.
No difference between Active Duty or Reserve for Commissioned Officers.
Actually there is - a reservist (O or E) that is not under orders is not subject to the UCMJ. Reserve Officers and Enlisted are treated the same as far as when can be subject to UCMJ.
From 10 U.S. Code § 802 - Art. 2. Persons subject to (UCMJ)
Article 2(a)(3)(a) Reservist are subject while on inactive-duty training; reservists are defined as (i)members of a reserve component; and (ii)members of the Army National Guard of the United States or the Air National Guard of the United States, but only when in Federal service.
Quote:
Originally Posted by Ralph_Kirk
I think he was National Guard.
Apparently the military can't touch retired National Guard. They have a different retirement "contract."
Article 2(a)(4) allows for the court-martial of regular component (Army, Navy, Marine, Air Force, Space Force, and Coast Guard) retirees who are entitled to pay. They are treated like active-duty members in that they are continuously subject to UCMJ jurisdiction even though retired.
Retired Reserves of Navy and Marines are specifically included if they retire between 20 years and 30 years service since they go into the Fleet Reserves. Article 2(a)(6) allows for the court-martial of retirees who are part of the Fleet Reserve or Fleet Marine Corps Reserve, they are treated like active duty retirees.
The Reserves of Army, Air Force, National Guards, plus Navy and USMC retired after 30 years (they do not transfer to fleet reserves) are technically not listed as subject to UCMJ according to 10 U.S. Code § 802.
In 2019, a District Judge ruled that using the UCMJ against a retired service member was unconstitutional because of the difference in treatment between retired reserves and active duty.
Still does not matter though, a service member cannot be tried twice for the same offense in accordance with Article 44. There is no spinning out of this, you will see the Marine will be tried in federal court, and he will not go through military court at all.
However, there is NJP which I am sure will be part of the separation process when they kick them out.
What you're saying doesn't make sense because NJP is in lieu of a Court Martial. You can't NJP someone for something that you can't Court Martial them for, because you can't force an NJP on someone. It's a choice of VENUE, and the choice is the defendants. They can deny the NJP and demand trail by Court Martial. They'd do that 1000% of the time if they couldn't actually go to Court Martial for Double Jeopardy.
What you're saying doesn't make sense because NJP is in lieu of a Court Martial. You can't NJP someone for something that you can't Court Martial them for, because you can't force an NJP on someone. It's a choice of VENUE, and the choice is the defendants. They can deny the NJP and demand trail by Court Martial. They'd do that 1000% of the time if they couldn't actually go to Court Martial for Double Jeopardy.
Should have been more clear, I meant other items not directly as the civil court charged, but others.
No expert though, I am only speaking from experience with an issue I was part of. Military member was charged (eventually convicted) in federal court of a fraud type activity and child porn (found on computer during the fraud investigation). Military though did NJP, forget the specific charges, but it was related to unauthorized use of government property.
So the guy still went through civilian court, but the military still levied NJP on him, derived from the fallout of the civilian investigation, though the civilian court never charged him when unauthorized use of anything.
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