The Coast Guard Court of Criminal Appeals explored CAAF’s reasoning in Nerad in its newest published opinion, United States v. Bond. In Bond, an accused faced a general court-martial for rape along with three unrelated offenses that arose from an alcohol-related liberty incident during a port call in Barbados. During the port call the accused had gotten quite sideways on a public street and had to be escorted back to the cutter by two female shipmates. While being escorted, the accused allegedly grabbed at one escort’s crotch and made sexual comments to them. The accused went to mast for the Barbados incident.
The appellant had been accused of rape two weeks before the Barbados incident, and all of the charges—including the ones for which the accused had been punished at mast—were referred to a general court-martial. The accused unsuccessfully moved to dismiss the Barbados charges for former jeopardy. The most serious Barbados charge was attempted indecent assault, and the military judge found that they were not minor under RCM 907.
At trial, the accused was acquitted of rape and attempted indecent assault, but convicted of assault consummated by a battery, drunkenness, and indecent language. Members awarded reduction to E-1 and a BCD.
In a pre-Nerad unpublished opinion, the Coast Guard court set aside the findings and sentence under Article 66, holding that preserving GCM convictions for the remaining minor offenses that had already been the subject of NJP was neither “necessary [n]or attractive.” Nerad was decided shortly afterwards and the government asked for reconsideration. The Coast Guard court withdrew its first opinion but relied on Nerad to reach the same result. The court declined to find that the military judge erred by allowing the Barbados charges to proceed to trial, but found that once the verdicts left only minor offenses on the table, it was “unreasonable” to maintain the court-martial convictions for previously punished conduct. The court compared its action to the Nerad-approved determination by a CCA that a finding should be set aside as an unreasonable multiplication of charges, even though the charge might be factually and legally correct. The Coast Guard court asserted that this is a legal standard as opposed to an equitable one, and that it has the authority to set aside the convictions under Article 66, UCMJ.
Disclosure: I was IMC in this case.