Generally, a commander cannot impose nonjudicial punishment (NJP) under Article 15 after charges have been referred to court-martial and then withdrawn, due to the doctrine of former jeopardy. Once charges are referred to a court-martial with jurisdiction to adjudicate them, jeopardy attaches, preventing subsequent NJP for the same misconduct. This protection exists even if the court-martial never convened or the charges were dismissed without prejudice.
However, limited exceptions may apply. If the withdrawal occurred before arraignment and the accused never entered pleas, some military appellate courts have found jeopardy hadn’t attached. Additionally, if the referral was void due to lack of jurisdiction or procedural defects, NJP might remain available. The key factor is whether the referral was valid and whether proceedings advanced to trigger jeopardy protections.
Commanders must carefully consider the procedural history before attempting NJP after court-martial withdrawal. The safer practice involves pursuing alternative administrative actions like counseling, reprimands, or administrative separation proceedings. If NJP is imposed after former referral, the service member can refuse NJP and demand trial by court-martial, where they could raise the former jeopardy issue as a bar to prosecution.