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Double Jeopardy: Does it Affect Service Members as Well

Constitutional protection against double jeopardy typically prevents civilians from being prosecuted twice for the same crime. But how does this concept translate into the military justice system? Can service members face double jeopardy? While the Uniform Code of Military Justice incorporated double jeopardy rules, complexities like the “separate sovereigns” doctrine create exceptions allowing re-prosecution for the same misconduct under certain circumstances.

Double jeopardy Let us explore the nuances of how double jeopardy applies differently to military members compared to civilians. It provides an overview of key differences in double jeopardy rules and protections under civilian law versus the UCMJ.

What is Double Jeopardy?

Double jeopardy means prosecuting someone twice for the exact same criminal offense. The 5th Amendment of the U.S. Constitution says no person shall “be subject for the same offense to be twice put in jeopardy of life or limb." So, civilians cannot face repeat trials for an offense they were already acquitted or convicted of.

How Double Jeopardy Differs Under the UCMJ

The Uniform Code of Military Justice (UCMJ) incorporated double jeopardy rules similar to those in civilian courts. Per Article 44 of the UCMJ, members cannot be tried twice for the same crime.

However, due to key differences between civilian and Military Law, double jeopardy rules are applied differently. Military double jeopardy law is governed by “separate sovereigns” and “dual sovereignty” doctrines. This means service members can face prosecution in civilian and military courts for the same misconduct without violating double jeopardy. Some examples:

- Civilian authorities can prosecute a service member for assault, even if they were already court-martialed for the assault under the UCMJ. The two justice systems are considered "separate sovereigns."

- A member convicted at court-martial can then be tried for the same crime in federal court without double jeopardy issues. The court martial and federal courts are separate sovereigns.

- Separate UCMJ crimes like disobeying orders and dereliction of duty related to one act can be tried separately. The unique military offenses are seen as separate for double jeopardy purposes.

When Double Jeopardy Limitations Do Apply

Double jeopardy While rare, double jeopardy does prevent re-prosecution for an identical UCMJ offense in some instances:

- Usually, a service member cannot be retried by court-martial for a specific UCMJ violation they were already acquitted of.

- Courts-martial cannot retry an individual for the exact same UCMJ charges they were previously convicted of after a final judgment.

- Members cannot be punished twice for the same act at one trial. For instance, a conviction for negligent homicide precludes adding a conviction for involuntary manslaughter to the same court martial.

- Higher courts generally cannot increase sentences upon appeal without certain conditions being met.


Rehearings represent an exception to double jeopardy limitations. If serious procedural errors occur in the initial court-martial, it can be nullified, and a verbatim rehearing can be ordered. This essentially gives the prosecution a second chance after a faulty trial.

Rehearings do not violate double jeopardy because the original court-martial is considered invalid.

Other Double Jeopardy Differences

Other key ways double jeopardy operates differently for service members.

- Non-judicial punishment under Article 15 does not bar later courts-martial for more serious charges, even if based on the same misconduct.

- Administrative discharge proceedings do not prohibit later court martials for the same offenses. Discharges are not considered "jeopardy."

- Other administrative actions like reprimands, demotions, and fines based on misconduct do not trigger double jeopardy against later UCMJ prosecution.

- Overseas trials by foreign courts do not necessarily prevent U.S. court-martial for the same crime, and vice versa.


Nuances like the “separate sovereigns” doctrine mean double jeopardy does not protect military members to the same extent as civilians. This aims to enable misconduct to be fully prosecuted between the overlapping military and civilian justice systems. But while limited, enlisted members do maintain some double jeopardy protections under the UCMJ against being tried repeatedly for identical offenses in certain instances.

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Any facts, figures or references stated here are made by the author & don't reflect the endorsement of iU at all times unless otherwise drafted by official staff at iU. This article was first published here on 1st March 2024.

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