One action is military justice domain, the other is administrative domain. Plenty of people have avoided punitive discharges only to be administratively discharged or relieved of specialty designations. It’s Charlie Sierra, but it’s legal.
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I think this case is operating backwards. Administrative discharge may occur in lieu of courts-martial. I have not heard of someone getting an administrative discharge after being court-martialed, especially if the courts-martial punishment did not include discharge/dismissal. Wouldn’t there be a double jeopardy issue with such action?
You’d think so, but no double-jeopardy. That only applies to being tried twice in a criminal proceeding after having been acquitted. A pardon wipes out the criminal piece but administrative proceedings arising from the same facts are not barred. The standard of proof is lower in admin actions (preponderance v. beyond a reasonable doubt). Ain’t sayin’ it’s right, just that it’s a fact.
“Wouldn’t there be a double jeopardy issue with such action?”
No. The individual was charged and court martialed for the act he did. That was not overturned. He is not innocent of the act, just relieved of the punishment of it by a higher authority.
The military justice system is very scripted. Everything is done in order and completed before the next step can be finalized. (Sometimes no matter how long it takes) What they are determining with the MEB is the Chief’s future decision making capacity to stay within the guidelines of the mission needs and as trained and expected to accomplish. Since he was determined guilty of doing the act, it puts in question his capacity to carry out his duties and responsibilities.
If they determine him unfit, they probably will discharge him with a general discharge since he has a record of a forgiven, not made innocent, offence. It will remaion on record.
rwood