In United States v. Malone, CAAF ruled that the Appellee affirmatively waived multiplicity by failing to object to facially duplicative specifications prior to pleading guilty. United States v. Malone, __ M.J. __, slip op. at 3 (C.A.A.F. Jan. 20, 2026). Crucial to the Court’s holding is the absence of an ineffective assistance of counsel (IAC) claim. Id. at 10. But has the Court’s opinion walked into a Menna-Blackledge problem?

Background

In Malone, the Appellee pleaded guilty to three specifications of domestic violence under Article 128b. The three specifications allege:

SPECIFICATION 1: In that [Appellee], U.S. Army, did, at or near Fort Bliss, Texas, on or about 1 December 2022, commit a violent offense against Ms. [GR], the intimate partner of the accused, to wit: by unlawfully striking her in the face with his hand.
SPECIFICATION 3: In that [Appellee], U.S. Army, did, at or near Fort Bliss, Texas, on or about 1 December 2022, commit a violent offense against Ms. [GR], the intimate partner of the accused, to wit: by unlawfully striking her in the head, face, arm, shoulder, torso, and leg with his hand.
SPECIFICATION 4: In that [Appellee], U.S. Army, did, at or near Fort Bliss, Texas, on or about 1 December 2022, commit a violent offense against Ms. [GR], the intimate partner of the accused, to wit: unlawfully throw Ms. [GR] to the ground with his hand, and did thereby inflict substantial bodily harm, a broken clavicle.

(emphasis added). The guilty plea contained no “waive all waivable motions” provision. When the military judge asked whether defense counsel had any objections, Appellee’s counsel responded, “Defense has no motions.”

The original ACCA panel affirmed the findings and sentence. Upon Appellee’s suggestion for en banc reconsideration, ACCA, sitting en banc, reversed the panel and merged specifications 1, 3, and 4 for multiplicity and affirmed the original sentence.

On appeal, the Government argued trial defense counsel’s failure to raise any motions demonstrates an intentional relinquishment of a known right—waiver. Waiver is the intentional relinquishment of a known right. United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020). An appellee may knowingly and voluntarily waive many of the most fundamental protections the Constitution affords. United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009). In the face of obvious multiplicity issues, the Government argued Appellee’s failure to simultaneously file a claim of ineffective assistance of counsel renders the Defense’s “no motions” statement waiver instead of forfeiture. See Brief of Appellant at 13, United States v. Malone (No. 25-0140/AR). The Government cited no binding or persuasive authority for the position that forfeiture becomes waiver in the absence of an IAC claim. CAAF agreed. Instrumental in its conclusion were:

the military judge specifically advised defense counsel that any “motions to dismiss” should be made prior to Appellee’s plea; R.C.M. 907(b)(3)(B) explicitly states that “motions to dismiss” include any multiplicity claims; the potential merits of a multiplicity claim in this case were obvious on the face of the charge sheet, in the stipulation of fact, and during the providence inquiry; and yet, defense counsel unambiguously stated that he would not be filing any motions. Based on this set of circumstances, we answer the first certified issue in the affirmative because the multiplicity issue was affirmatively waived.

Malone, slip op. at 3. However, CAAF’s analysis fails to distinguish Malone from the Menna-Blackledge doctrine.

Law

The Menna-Blackledge doctrine prohibits the waiver of certain constitutional objections—including double jeopardy[1]—even for unconditional guilty pleas. Class v. United States, 583 U.S. 174, 178 (2018) “Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam) (citing Blackledge v. Perry, 417 U. S. 21, 417 U. S. 30 (1974)). In Menna, after the New York Court of Appeals (highest state court in New York) held the appellant waived a double jeopardy claim by pleading guilty, the Supreme Court reversed. Id. It held “a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.” Id. at 63 n.2. In United States v. Broce, the Supreme Court considered another multiplicity claim that was raised for the first time on appeal after a guilty plea. 488 U.S. 563, 565 (1989). This time though, the Court affirmed the convictions. Id. at 576. The Court clarified that “in neither Blackledge nor Menna did the defendants seek further proceedings at which to expand the record with new evidence.” Id. at 575. The appellants lost because they could not “prove their claim by relying on those indictments and the existing record.” Id. at 576. The Court has never required a simultaneous IAC claim. In fact, the Court in Broce noted how there were “no allegations that counsel was ineffective.” Id. at 566.[2]

Discussion

That CAAF viewed the specifications as facially duplicative is beyond doubt. The Court repeatedly referred to the obviousness of the error: “the potential merits of a multiplicity claim in this case were obvious on the face of the charge sheet, in the stipulation of fact, and during the providence inquiry.” Malone, slip op. at 3 (citation modified). “[W]e see no reason to conclude that a counsel cannot waive a facially duplicative multiplicity claim on behalf of his or her client.” Id. at 10. And as the Court explained in greater detail in its analysis:
Second, competent counsel would not overlook a potentially meritorious multiplicity claim in a case such as this one where this issue was undeniably obvious on the face of the charge sheet, in the stipulation of fact, and during the providence inquiry. Specifically, the charges alleged three specifications of similar acts of domestic violence on the same date and involving the same victim. Further, the stipulation of fact not only reflected that the three specifications of domestic violence occurred on the same night, took place in the same location, and involved the same victim, it also demonstrated that Appellee’s underlying conduct was of the same nature when it noted that Appellee first struck GR’s face with his hand, ‘then continued to aggressively’ punch GR, and ‘continued the assault’ by pushing GR to the ground. Finally, during the plea proceedings Appellee acknowledged that the domestic violence specifications were ‘part of the same event’ and ‘all part of the same transaction.’ Thus, the potential for a meritorious multiplicity claim was repeatedly highlighted throughout this case and competent counsel would have taken notice.

Id. at 11-12. Under Menna and Broce, this should have been a straightforward case. And prior to Malone, the facially duplicative analysis is how CAAF approached multiplicity. See, e.g., United States v. Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009); United States v. Craig, 68 M.J. 399 (C.A.A.F. 2010) (per curiam); United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997).

Of course, Malone claims CAAF has previously held express waiver can overcome even facially duplicative specifications. Malone, slip op. at 7 (“Even if specifications are facially duplicative, ‘[e]xpress waiver or voluntary consent . . . will foreclose’ this multiplicity inquiry. Lloyd, 46 M.J. at 23.”).

There are three issues with this claim: (1) in context, the quote does not support the position CAAF rests upon it; (2) ironically, the case CAAF cites to, Lloyd, actually rejects the very reasoning CAAF adopted in this case; and (3) civilian courts review multiplicity claims even where unconditional pleas waive the right to appeal. 

First, the case the Court cited for this proposition is quoted out of context. Malone states: “Even if specifications are facially duplicative, ‘[e]xpress waiver or voluntary consent . . . will foreclose” this multiplicity inquiry.’” Id. (quoting Lloyd, 46 M.J. at 23). The full quote from Lloyd is: “Express waiver or voluntary consent, however, will foreclose even this limited form of inquiry.” Lloyd, 46 M.J. at 23. In context, the “limited form of inquiry” is not a multiplicity inquiry writ large as Malone claims, but rather, a guilty-plea providence inquiry. The preceding two paragraphs explained how courts-martial providence inquiries are significantly more detailed than their civilian counterparts with active involvement from the military judge. See id. As a result, an appellate court need not review a full record to determine whether specifications are multiplicious. Instead, military appellate courts need only consider whether specifications are facially duplicative. Id. at 24.

Second, the Lloyd Court specifically rejected the very reasoning that CAAF adopts in Malone. See id. at 21. In Lloyd, not only did the AFCCA hold the appellant waived multiplicity by pleading guilty. Id. It also argued that multiplicity claims in the guilty plea should be asserted with an IAC claim. Id. CAAF rejected “the suggestion that multiplicity issues need be addressed only when they rise to the level of ineffective assistance of counsel” and that multiplicity may not rise to plain error. Id. It held that the AFCCA erred and it ultimately reviewed whether the specifications were facially duplicative. Id. at 22-23. This was despite the applicable version of R.C.M. 905(e) also treating unraised objections to the charges and specifications as waived.[3]

Third, CAAF’s rule in Malone not only stands at odds with the consistent practice with the civilian courts of appeals but also with the United States Supreme Court. In Class, the Supreme Court considered whether a valid guilty plea prohibited the defendant from challenging the constitutionality of the statute under which he was convicted. Class, 583 U.S. at 176. The guilty plea listed categories of rights that the appellant was expressly waiving. Id. at 176-77. It also listed a few claims that would survive the guilty plea such as IAC, new evidence, or new statutes that could reduce his sentence. Id. The District Court even clarified with the appellant that he knew that he was “‘giving up [his] right to appeal [his] conviction.’” Id. at 185. The appellant agreed. Id. Relying on Menna-Blackledge, the Court rejected many of the same arguments the Government offered in Malone (guilty plea, express waiver, implied waiver) and held that the appellant’s challenge survived the guilty plea. Id.

Malone also stands in contrast with the rule in the civilian federal courts of appeal. “An unconditional guilty plea does not [] bar consideration” of claims “challenging a conviction independently of the question of factual guilt.” United States v. Bud Brown, 875 F.3d 1235, 1237 (9th Cir. 2017); see also id. at 1237 n.2; United States v. Maribe Yanibe Montilla,  870 F.2d 549, 552 (9th Cir. 1989) (referring to prosecutorial vindictiveness and double jeopardy as “‘jurisdictional’ claims”[4] that cannot be waived by an unconditional guilty plea); United States v. Vaughan, 13 F.3d 1186, 1188 (11th Cir. 1994) (“Given these exceptions [vindictive prosecution and double jeopardy], we have frequently stated the general rule to be ‘that a valid guilty plea operates as a waiver of all non-jurisdictional defects or errors.’”). Most Menna claims fail, but the occasional Menna-Blackledge claim has merit. For instance, in United States v. Kaiser, the Eleventh Circuit held that the appellant’s double jeopardy claim after a guilty plea had merit.

893 F.2d 1300, 1302-03 (11th Cir. 1990). The appellant’s charges were facially duplicative; therefore, the court had to consider the merits of the underlying double jeopardy claim (two of appellants counts were vacated). Id. at 1306-07.

Moreover, CAAF cannot claim Appellee failed to bring Menna-Blackledge to the Court’s attention. Appellee expressly cited to it in its argument against waiver.[1] Brief of Appellee at 11, United States v. Malone (No. 25-0140/AR).

In light of the Court’s ever-expanding application of waiver, Malone’s result is not surprising. Yet the Court’s failure to distinguish Malone from Menna, Broce, Class and implicit overturning of its own precedent in Lloyd seem shocking. Just as the facially duplicative specifications in this case were “obvious,” so are the downstream consequences of this new rule of military criminal procedure. Defense appellate counsel will need to file frivolous IAC claims in order to vindicate servicemembers rights against unconstitutional convictions.

_________________________

[1] Appellee cited the case as United States v. Menna, 423 U.S. 61, 62 (1975) instead of Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam).


[1] Multiplicity is a form of Double Jeopardy. “The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (citation modified).

[2] The Drafters of the MCM were certainly familiar with the Menna-Blackledge doctrine. Although R.C.M. 910(j) (2024 ed.) did not apply to Appellee’s case, Malone notes how “the President has changed the landscape in this area of the law, making waiver issues more clear-cut. Effective July 28, 2023, R.C.M. 910(j)—the waiver provision for guilty pleas—now states:
Except as provided in paragraph (a)(2) of this rule, a plea of guilty that results in a finding of guilty waives any objection, whether or not previously raised, as to the factual issue of guilt of the offense(s) to which the plea was made and any non-jurisdictional defect as to the offense(s) to which the plea was made that occurred prior to the plea.
R.C.M. 910(j) (2024 ed.).” Malone, slip op. at 2 n.1. R.C.M. 910(j) (2024 ed.) waives by operation of law two classes of objections: (1) contesting the factual issue of guilt and (2) non-jurisdictional defects “prior to the plea.” Menna-Blackledge claims do not fall within either category. Menna claims do not contest the factual issue of guilt. Menna, 423 U.S. at 63 n.2. They also do not address defects prior to the plea. See Class v. United States, 583 U.S. 174, 184 (2018).

[3] R.C.M. 905(e): “Effect of failure to raise defenses or objections. Failure by a party to raise defenses or objections or to make motions or requests which must be made before pleas are entered under subsection (b) of this rule shall constitute waiver. The military judge for good cause shown may grant relief from the waiver. Other motions, requests, defenses, or objections, except lack of jurisdiction or failure of a charge to allege an offense, must be raised before the court-martial is adjourned for that case and, unless otherwise provided in this Manual, failure to do so shall constitute waiver.” Manual for Courts-Martial, United States, 1984 (Nov. 15, 1991). R.C.M. 905(b)(2) (1991) lists “Defenses or objections based on defects in the charges and specifications” as a category of error that “must be raised before a plea is entered.” Id.

[4] Part of the confusion stems from the oft-repeated rule that a “an unconditional guilty plea operates to waive ‘all defects which are neither jurisdictional nor a deprivation of due process of law.’” Malone, slip op. at 7 (quoting United States v. Day, 83 M.J. 53, 56 (C.A.A.F. 2022)). Day pulled that language from United States v. Schweitzer. Id. Schweitzer, in turn, quotes United States v. Rehorn, 9 C.M.A. 487, 488-89, 26 C.M.R. 267, 268-69 (1958). The issue with this is that courts, including the Supreme Court, used the term “jurisdictional” far more expansively in the past. Arbaugh v. Y&H Corp., 546 U.S. 500, 510 (2006) (“‘Jurisdiction,’ this Court has observed, ‘is a word of many, too many, meanings.’”)(citation omitted); see also United States v. Cotton, 535 U.S. 625, 630 (2002) (“[Earlier cases’] elastic concept of jurisdiction is not what the term ‘jurisdiction’ means today”). 

Some old themes persist even after changes to the law. United States v. Downum, _ M.J. _ (2025) illustrates that factual sufficiency review is still unsettled terrain even after changes to the Code purported to clarify the power. 
In Downum, the accused faced a general court-martial for wrongful cocaine use. The government evidence included a drug lab expert that the accused's sample tested positive for cocaine at a level that could not have been produced by any means other than cocaine ingestion. The defense did not contest that he had ingested cocaine but attempted an innocent ingestion defense through the accused's testimony that he never knowingly ingested cocaine and that his drink could have been spiked. The members did not buy this effort, and the accused was convicted of wrongful use of cocaine. 
The Army Court of Criminal Appeals (ACCA) reversed, holding that the testimony from the government’s expert witness on drug testing was “not relevant” because the government did not admit the printed results of the drug lab test. 
Judge Hardy wrote for a CAAF majority agreeing with ACCA’s decision to toss out the conviction, holding that factual sufficiency powers permit such broad discretion. 
Judge Sparks dissented, joined by Judge Johnson, writing that the expert testimony met the low standard for "relevance" in Military Rule of Evidence 401, and that the question of whether the accused had ingested cocaine was not even contested by the defense. 
This case illustrates that whether and how military appellate courts will apply their factual sufficiency powers is not knowable, which might tend to chill prosecutorial decisions from the start. The result in Downum might be especially pertinent in prosecutions of high-status defendants (here, the defendant was a West Point graduate and Army Captain) where factual sufficiency muscles are more likely to be exercised to convey impunity. CAAF's 3-2 decision portends more factual sufficiency disputes in the future.

In Kruse, (a Government appeal) NMCCA finds that a convening authority may refer non-covered offenses to court-martial after the Office of Special Trial Counsel (OSTC) has determined that the same underlying misconduct constituted a covered offense and later deferred disposition.

The OSTC initially exercised authority over alleged domestic violence under Article 128b, UCMJ, a covered offense. After concluding the evidence did not meet its charging standard, the OSTC formally deferred all covered offenses and related misconduct back to the command. The convening authority then referred charges to a general court-martial for assault and aggravated assault under Article 128, UCMJ—offenses that arise from the same conduct but are not defined as covered offenses under Article 1(17).

The military judge dismissed the Article 128 specifications, reasoning that once the OSTC classified the conduct as a covered offense, neither the convening authority nor any other government actor could later charge that conduct under a different article.

The court held that the statutory and regulatory scheme draws a clear distinction between covered offenses and underlying misconduct. Once the OSTC defers a case, the convening authority regains full disposition authority except for the power to refer a covered offense to a special or general court-martial. Nothing in Article 24a, Article 1(17), or the Rules for Courts-Martial prohibits a convening authority from referring non-covered offenses, even if they rely on the same factual predicate as a deferred covered offense.

The NMCCA emphasized that the law restricts charging authority by offense classification, not by conduct. The OSTC’s determination that a reported offense qualifies as a covered offense does not permanently transform the underlying conduct into something that only the OSTC may prosecute. Because Article 128 offenses are not covered offenses, the convening authority acted within statutory authority when referring them after deferral.

NMCCA concluded that the military judge erred as a matter of law and reinstated the dismissed assault specifications.

Any questions?

1. Why did OSTC defer? Because “the available evidence does not meet the [OSTC’s] charging standard . . . .”

2. What is the charging standard applied by both OSTC and the CA? To start, Para. 2.1, Appendix 2.1, (non-binding) Disposition Guidance, MCM (2024 ed.) has several relevant considerations that might apply.

Let's see what JAGINST 5800.7G, Change 2, 1 December 2023 (The JAGMAN), has to say. Not much. 0122(a)(4) simply notes the Exclusive STC Authority. There is no JAG Notice on the subject. There do not seem to be publicly available operating instructions or guidance for the Navy OSTC that would help the public understand how the NOSTC interprets and applies Appendix 2.1.

So, OSTC doesn't think it can get a conviction for DV, where there is proof BRD of the qualifying relationship under 128b? So is the issue whether there was an assault at all? There was a compelling affirmative defense? The victim won't cooperate? If OSTC and a GCMCA are operating under the same rules and principles, what other evidence does the GCMCA have that the OSTC doesn't have that leads to a belief that there is a reasonable case for proof BRD for A&B?

While NMCCA's legal reasoning makes sense, what about the inconsistency between OSTC and a GCMCA?

Major Emma K. Fowler, A "Civil Death" of the Military Accused: The Vast Impacts of Collateral Consequences of Court-Martial Convictions and the Need to Reform Military Sentencing Practice. 232 Mil. L.Rev. 29 (2025).

In conclusion she argues

Major Fowler refers us to the National Registry of Collateral Consequences of Conviction.

There are 420 adverse consequences of a felony conviction under federal law and 243 for a misdemeanor conviction. In Virginia, the number is 890 and 410. (I have not checked for duplication.) Keep in mind that a conviction at Special Court-Martial may be a felony, and a conviction at General Court-Martial may not be under either state or federal law. Keep in mind that many of the consequences may not be relevant to a GI Joe headed out to the civilian community. Until, perhaps, you have a client seeking an SEC licence, a student loan, or admission to Uni (at least in Virginia).

Many of these consequences may adversely affect a person's ability to rehabilitate and have "a useful and constructive place in society," or, as Major Fowler alludes, become one of thousands of homeless "vets."

As we know, unless the accused is retirement-eligible or very close to retirement, the collateral consequences of losing retirement pay are irrelevant — and inconsistent with the irrelevance of collateral consequences. Similarly, unless the accused has been on SOR post-conviction, pending appeal, and then is facing a retrial, SOR/Talkington challenges become irrelevant (even though a state court may have found certain aspects punitive or applied in violation of the ex post facto doctrine).

See also, Olivia Johnnene, Collateral Consequences of Conviction: The Current Inequality in Courts’ Consideration of the“Side Effects” of Federal Sentencing. 29 Suffolk J. Tr. and App. Advocacy 229 (2024); COLLATERAL CONSEQUENCES: The Crossroads of Punishment, Redemption, and the Effects on Communities. U.S. Commission on Civil Rights, Briefing Report (2019); ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons. (3rd ed., 2004).

Richard sought extraordinary relief in the nature of a writ of mandamus to compel dismissal with prejudice of an involuntary manslaughter specification referred for a second general court-martial. She invoked the Fifth Amendment’s Double Jeopardy Clause and Article 44, Uniform Code of Military Justice (UCMJ).

Richard’s initial court-martial occurred in 2021 after the tragic death of her infant daughter. The Government charged her with two murder specifications under Article 118, UCMJ (unpremeditated murder and murder while engaging in an inherently dangerous act). The panel acquitted Richard of both murder specifications, convicted her of the lesser included offense (LIO) of involuntary manslaughter under Article 119(b), UCMJ, and found the child’s death caused “by asphyxia.”

On appeal, the CGCCA held the original involuntary manslaughter specification failed to provide constitutionally adequate notice of the act(s) or omission(s) forming the basis for the conviction. It accordingly set aside the conviction and dismissed the specification without prejudice, authorizing a rehearing (Richard I).

The Government then referred a new involuntary manslaughter specification alleging that Richard killed the child by “tightly swaddling [the child], placing [the child] in the bed face down, and using her hand to press [the child]’s head into the bed.” Richard moved to dismiss on double jeopardy grounds, which the military judge denied, prompting her mandamus petition.

Issues Presented

1. Whether double jeopardy barred rehearing because the first conviction was based on an ambiguous verdict;
2. Whether the appellate court’s authorization of rehearing amounted to an “other trial” under R.C.M. 810(e) without proper authorization; and
3. Whether she could be retried on involuntary manslaughter because the first trial lacked a proper LIO instruction on the second murder specification and the original LIO instruction was legally incorrect.

1. There is a high threshold for mandamus relief. The a petitioner must show (1) no other adequate remedy exists, (2) a clear and indisputable right to the writ, and (3) that issuing the writ is appropriate under the circumstances.

Under the Fifth Amendment and Article 44(a)-(b), UCMJ, a second trial for the same offense generally is prohibited. However, when a conviction is reversed on appeal (for reasons other than insufficient evidence), retrial ordinarily is permitted because the original judgment did not become final. Citing Supreme Court law, the court explained that successful appeal on any ground other than insufficient evidence does not bar further prosecution.

Court’s Analysis and Rulings.

1. Ambiguous Verdict Argument. Richard argued that her first conviction was ambiguous—preventing identification of the exact factual basis for the involuntary manslaughter verdict—and that retrying her on that conduct violated double jeopardy.

The court acknowledged that a general verdict is “ambiguous” in the everyday sense, as it does not articulate the specific factual theory on which members based their finding. But the opinion clarified that the judicial doctrine of an ambiguous verdict applies only in the narrow class of cases where a single specification charges multiple occasions or acts, and the verdict does not clarify which occurrence it applies to. Citing United States v. Wilson and related precedent, such as Walters, the court explained that an unobjected-to general verdict unambiguously includes guilt as to each charged act unless the defense produced a special finding indicating otherwise.

On the facts of Richard I, the panel’s general verdict of involuntary manslaughter—distinct from acquittal of murder—effectively resolved intent: the members found no intent necessary for murder but did find culpable negligence, the mental element for involuntary manslaughter. The court rejected that this situation implicated ambiguous verdict doctrine. There was no factual basis to conclude that the panel acquitted her of specific acts now charged; at most, the record showed uncertainty inherent to general verdicts. So, CGCCA found that the panel’s verdict did not create ambiguity in the legal sense that would trigger double jeopardy protection.

2. Rehearing vs. “Other Trial” Argument. Richard argued that the second prosecution was improperly characterized as a rehearing when it was in fact an “other trial” under R.C.M. 810(e), which she argued the appellate decision did not authorize.

The court explained that the statutory term “rehearing” encompasses what R.C.M. 810 labels a “new trial” or “other trial.” In essence, the court order authorizing rehearing under Article 66(f)(1)(A)(ii), UCMJ effectively authorized the subsequent trial on a new specification that corrected the defects previously identified. The court noted that R.C.M. 810(e)’s definition of an “other trial” includes scenarios where original proceedings were declared invalid due to a failure of a charge to state an offense—precisely this case. No error here.

3. LIO Instruction and Jeopardy Continuance. Richard argued that because no LIO instruction was provided under the second murder specification, and because the original LIO instruction was legally incorrect, jeopardy had terminated as to involuntary manslaughter.

The court rejected this argument, explaining that the acquittal on one murder specification does not necessarily immunize the accused from prosecution on related LIOs arising from the other murder specification. Additionally, the fact that an LIO instruction in the first trial may have been legally imperfect did not render the first trial’s jeopardy attachment a nullity. The Government countered—and the court agreed—that when the conviction was reversed for technical reasons unrelated to evidence insufficiency, retrial on the LIO charge, properly stated, remains permissible. Because the involuntary manslaughter specification now corrects prior defects, retrial on that specification does not offend double jeopardy.

1. Double Jeopardy in Military Courts: The decision affirms that military courts follow the Supreme Court’s civilian double jeopardy framework: retrial after a reversal for reasons other than insufficient evidence generally is permissible. This aligns with Bravo-Fernandez v. United States and United States v. Scott. Military appellate courts thus will closely parse whether an appellate reversal reflects a final judgment on the merits of evidence sufficiency.
2. Ambiguous Verdict Doctrine: The opinion clarifies the narrow scope of the ambiguous verdict doctrine. Mere uncertainty in members’ factfinding does not equate to an ambiguous verdict barring retrial absent the specific pattern of multiple allegations and indistinct findings that doctrine contemplates.
3. Rehearing Authorization and RCM 810: The court’s reasoning underscores that appellate authorization of rehearing under UCMJ Article 66 can encompass what the procedural rules label “new” or “other” trials. This provides prosecutorial flexibility where correcting defective specifications is necessary to vindicate justice without constitutional infirmity.

And see generally, Bravo-Fernandez v. United States, 580 U.S. 5 (2016) (when conviction is vacated on appeal for legal error unrelated to evidentiary insufficiency, Double Jeopardy Clause does not bar retrial even if the jury simultaneously returned acquittals on related counts); United States v. Scott, 437 U.S. 82 (1978).

Abstract​
Armed forces must be disciplined, but two bodies of international law relating to military discipline seem to be in conflict. On the one hand, international humanitarian law emphasizes that armed forces should employ robust disciplinary measures to deter and address military misconduct. On the other hand, some international human rights law scholars recently singled out military disciplinary measures as insufficiently protective of soldiers from unfair treatment. Proponents of this new approach proposed a remedy for disciplinary unfairness: borrowing a practice already used by some national militaries, soldiers should have the right to "turn down" disciplinary proceedings and elect to have their cases heard in military criminal trials instead. This article critically examines four of the underlying assumptions of this new approach. I argue that interlinking disciplinary law with penal law through a turn-down right is a mistake, and that there is an enduring role for both disciplinary and penal sanctions in regulating the behavior of armed forces.

The Principle of Party Presentation and United States v. Askins (Part I)
​
There is a lot to unpack in United States v. Askins. The Army TJAG certified a question concerning ACCA’s finding that some of the accused’s convictions were multiplicious. The Appellee/Cross-Appellant (Accused) has cross-petitioned CAAF to review ACCA’s holding that the United States was in a “time of war” such that the statute of limitations were tolled under Article 43(f), UCMJ. CAAF has not yet acted on the Accused’s cross-petition. But there’s another issue lurking in the record. It was raised in the Accused’s supplemental brief after oral argument, but the Accused has not asked CAAF to consider it as a separate assignment of error. Did ACCA violate the principle of party presentation?