The offender may, of course, be a soldier.
The U.S. Magistrate will have
jurisdiction over on-post misdemeanors, whether committed by civilians or soldiers.
However, "personnel subject to the UCMJ who pay a fine or forfeit collateral or
whose cases are disposed of under the (magistrate's court system) will not be
punished under the UCMJ for the same violation." (AR 190-29, paragraph 14.) This
is because the military and the federal government both represent the same
sovereign. Consequently, both may not prosecute an individual for the same crime,
as to do so would violate the double jeopardy prohibition in the U.S.
Constitution.
To avoid a possible problem here, "installation commanders should
establish policies on how to refer active duty Army personnel to the U.S.
magistrate for disposition when the violator's conduct constitutes a misdemeanor
within the magistrate's jurisdiction and is also a violation of the UCMJ" (AR 190-
29, paragraph 14). As an example, the post commander may want to keep jurisdiction
over certain traffic offenses (DUI) that were committed by officers and/or senior
enlisted personnel.
This is only an illustration, and much will depend on the
particular situation facing an individual installation.
PART F - STATUS OF FORCES AGREEMENTS (SOFA)
1.
General.
QUESTION:
IF A U.S. CITIZEN COMMITS A CRIME OVERSEAS, WHO CAN PROSECUTE HIM?
ANSWER: IF THE U.S. CRIMINAL STATUTE APPLIES OVERSEAS, THEN THE U.S. CAN PROSECUTE.
ALSO, THE FOREIGN COUNTRY IN WHICH THE CRIME OCCURRED CAN PROSECUTE.
QUESTION:
WHAT IF THE OFFENDER IS A SOLDIER?
ANSWER:
THERE ARE SEVERAL POSSIBILITIES. AS WE SHALL SOON SEE, THE SOLDIER CAN BE
COURT-MARTIALED NO MATTER WHERE THE CRIME TOOK PLACE. HE IS ALSO SUBJECT
TO PROSECUTION BY THE FOREIGN COUNTRY. FINALLY, HE IS ALSO SUBJECT TO THE
U.S.
CODE;
IF
THE
U.S.
CRIMINAL
STATUTE
APPLIES
OVERSEAS,
(EXTRATERRITORIAL) THE U.S. COULD PROSECUTE HIM IN A FEDERAL CIVILIAN
COURT.
QUESTION:
IS THERE A DOUBLE JEOPARDY PROBLEM HERE?
ANSWER:
YES.
THE MILITARY AND THE U.S. GOVERNMENT CANNOT BOTH PROSECUTE SOMEONE
FOR THE SAME CRIME. REMEMBER, THEY ARE THE SAME SOVEREIGN.
A SOFA is an agreement (treaty) between the U.S. and a foreign country in
which we station troops. It defines the legal status of the armed forces of one
nation when they are stationed on another nation's territory. It includes both the
rights and the responsibilities of the visiting force. Subjects covered in a SOFA
include criminal jurisdiction, claims, taxation, customs, immigration, motor
vehicle registration, use of public services, etc.
QUESTION:
WHAT IS THE "RECEIVING STATE?"
MP1018
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