## Facts

- A Navy seaman was accused of sexual misconduct against a female shipmate during initial training.
- He admitted in an interview that he had intercourse with a shipmate who was intoxicated and whom he believed was unable to consent.
- A ship legal officer, acting for a special court-martial convening authority (SPCMCA), conveyed an arrangement: if the accused accepted nonjudicial punishment (NJP) under Article 15 for the misconduct and waived an administrative discharge board, he would not face court-martial.
- The accused accepted the arrangement, admitted misconduct during the NJP process, received NJP, and waived his right to contest administrative separation.
- A general court-martial convening authority (GCMCA) later referred a rape charge to a general court-martial; the accused entered a separate pretrial agreement with the GCMCA that did not include immunity.
- At trial, he moved to dismiss, arguing the earlier “no court-martial” arrangement constituted immunity (or de facto immunity) and that he detrimentally relied on it.
- The military judge denied dismissal but (1) excluded evidence related to the Article 15 and administrative separation and (2) awarded full sentencing credit for the NJP.
- The accused pleaded guilty to indecent assault (a lesser included offense) and was sentenced; the intermediate appellate court affirmed.

## Issues

1. Whether a SPCMCA-level promise of “no court-martial,” conveyed through a subordinate legal officer in exchange for NJP and waiver of an administrative board, constituted a binding grant of immunity barring later GCMCA prosecution.
2. Whether the arrangement should be enforced as de facto immunity due to reasonable detrimental reliance, requiring dismissal on fairness or due process grounds.
3. Whether dismissal was required, or whether exclusion of NJP/administrative-separation evidence and sentencing credit for NJP sufficiently remedied any prejudice.

## Decision

- The court affirmed the conviction and the lower court’s decision.
- It held the SPCMCA lacked authority under governing rules to grant immunity that would bind the GCMCA, and the arrangement was not a formal immunity grant.
- It declined to apply de facto immunity to bar prosecution because the GCMCA neither granted nor ratified immunity and there was no binding governmental commitment not to prosecute.
- It held the trial judge’s remedies—excluding NJP/administrative-separation information and granting full sentencing credit for NJP—adequately addressed any reliance-based prejudice, making dismissal unwarranted.

## Legal Principles

- Under military practice, immunity (transactional or use/derivative-use) must be granted by an authorized official under R.C.M. 704; a SPCMCA or subordinate legal officer cannot unilaterally bind a GCMCA with an immunity promise.
- De facto immunity may be recognized only when an authorized official (or one with actual/apparent authority to bind the convening authority) makes or ratifies a promise inducing reliance; lower-level disciplinary/administrative arrangements generally do not bar later GCMCA referral absent authorization or ratification.
- When an accused claims reliance on an unauthorized promise, appropriate remedies can include excluding evidence derived from the reliance (e.g., NJP admissions or administrative-separation matters) and granting sentencing credit for prior NJP punishment.
- NJP and administrative separation actions do not categorically preclude subsequent court-martial prosecution for the same misconduct absent a statutory bar, double jeopardy constraint, or a binding immunity agreement.

## Conclusion

A promise of “no court-martial” made at the SPCMCA level in exchange for NJP and waiver of administrative rights did not create binding immunity against later GCMCA prosecution; any unfairness from reliance was sufficiently cured by excluding NJP/administrative-separation evidence and providing full sentencing credit for the NJP.


United States v. McKeel, 63 M.J. 81 (C.A.A.F. 2006)