Q: If a charge was dismissed in a federal magistrate court, could a person go to special court martial for the same thing?
While on terminal leave, a friend of mine was charged with simple possession of a controlled substance on a federal property and had to appear in a federal magistrate court (where it was dismissed). His command found out about the incident and put him on legal hold just a few days before his EAOS even though he already had his discharge papers to try and push charges to courts martial. Would this be legal if court martial is considered a federal court and he already was seen by a federal court? Also, he can’t get administrative separation due to him being past his EAOS. Does this mean he will get a BCD since he can’t get a general discharge or OTH?
A: If it was dismissed "with prejudice" in the federal court, then there is an argument that the courts-martial may be bound by that dismissal. It depends on the reason and grounds it was dimissed. If the dismissal is silent, it's likely "without prejudice" and still subject to UCMJ action.
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