(dissenting) — In these cases we are required to decide whether the imposition of nonjudicial punishment on a serviceman by his commanding officer at a captain’s mast is a “criminal prosecution” so as to preclude subsequent prosecution by the State of Washington. Instead of looking to congressional intent and federal law to determine whether an Article 15 nonjudicial punishment proceeding is a criminal prosecution, the majority looks to the dictionary. The majority ignores all relevant law and changes the *188question from whether the military proceeding is a criminal prosecution to whether the proceeding allows a commanding officer to impose punishment. This is faulty analysis, and I therefore respectfully dissent.
The issue before us is whether a military Article 15 proceeding is “a criminal prosecution” within the meaning of our state statute. The parties all agree that double jeopardy does not bar subsequent prosecution and that the defendants’ only potential defense lies in RCW 10.43.040, which provides:
Whenever, upon the trial of any person for a crime, it appears that the offense was committed in another state or country, under such circumstances that the courts of this state had jurisdiction thereof, and that the defendant has already been acquitted or convicted upon the merits, upon a criminal prosecution under the laws of such state or country, founded upon the act or omission with respect to which he is upon trial, such former acquittal or conviction is a sufficient defense.
(Emphasis added.)
The words of our statute are clear; only a former “criminal prosecution” under the laws of another jurisdiction serves as a defense to a subsequent prosecution. The state prosecutions for driving while intoxicated in these cases are therefore barred only if the captain’s masts were criminal prosecutions.
In order to determine if an Article 15 military proceeding is a “criminal prosecution,” I would look to congressional intent and to federal law on the subject. The Constitution expressly authorized Congress to make the rules for the government and regulation of the land and naval forces. U.S. Const. art. I, § 8; Middendorf v. Henry, 425 U.S. 25, 43, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976). Scrutiny of United States Supreme Court authority, other federal court precedent, and the congressional history accompanying the enactment of the current Article 15, all lead me to conclude that nonjudicial punishment imposed by a commanding officer under Article 15 of the Uniform Code of Military *189Justice was not intended to, and does not, constitute “criminal prosecution.”
Under the Uniform Code of Military Justice, there are four ways of dealing with offenses committed by military personnel. The general court martial under Article 18 (10 U.S.C § 818) and the special court martial under Article 19 (10 U.S.C. § 819) are formal, adversarial criminal proceedings. However, the summary court martial under Article 20 (10 U.S.C. § 820) and nonjudicial punishment by a commanding officer under Article 15 (10 U.S.C. § 815) are non-adversarial proceedings. See, e.g., Zellers v. United States, 682 A.2d 1118, 1122 (D.C. 1996). The summary court martial and the Article 15 nonjudicial punishment are regarded as noncriminal in nature. E.g., Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987).
The Supreme Court has explained that “Article 15 punishment, conducted personally by the accused’s commanding officer, is an administrative method of dealing with the most minor offenses.” Middendorf, 425 U.S. at 31-32; Parker v. Levy, 417 U.S. 733, 750, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974). In Middendorf, military personnel brought an action challenging the authority of the military to try them and sentence them to confinement after a summary court martial without providing the assistance of counsel. The Court held that the fact that confinement can be imposed in a military environment after a summary court martial did not make it a “criminal prosecution” and concluded that the summary court martial is not a “criminal prosecution” for purposes of the Fifth or Sixth Amendment right to counsel. Middendorf, 425 U.S. at 42, 48. The Supreme Court held that the fact that a proceeding may result in the loss of liberty does not necessarily mean the proceeding is a criminal prosecution. Middendorf, 425 U.S. at 37. Even the dissent, which would have held that a summary court martial is a criminal proceeding, agreed that the less serious Article 15 nonjudicial punishment is not a criminal conviction. The dissenters noted that Article 15 nonjudicial punishment can be speedily imposed by a commander and does not carry with it the stigma of a criminal *190conviction. Middendorf, 425 U.S. at 58 n.9, 64 (Marshall, J., dissenting).
The fundamental character of an Article 15 nonjudicial proceeding is that it is not a trial by court martial. Dumas v. United States, 620 F.2d 247, 250 (Ct. Cl. 1980); Jamison v. United States, 5 Cl. Ct. 747, 750 (1984), aff’d, 765 F.2d 159 (1985). Numerous federal cases have held that an Article 15 nonjudicial punishment proceeding is not a criminal prosecution. E.g., United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Fairchild, 814 F.2d at 1558; Varn v. United States, 13 Cl. Ct. 391, 396 (1987); Dumas, 620 F.2d at 251; Bowes v. United States, 645 F.2d 961 (Ct. Cl. 1981); Cole v. United States, 228 Ct. Cl. 890 (1981); Jamison, 5 Cl. Ct. at 750; Cochran v. United States, 1 Cl. Ct. 759, 764 (1983), aff’d, 732 F.2d 168 (1984); Cappella v. United States, 624 F.2d 976, 980 (Ct. Cl. 1980). No cases have been cited or located which hold to the contrary.
The legislative history accompanying 10 U.S.C. § 815 states that Article 15 nonjudicial punishment is noncriminal in character. S. Rep. No. 87-1911, at 2-4 (1962), reprinted in 1962 U.S.C.C.A.N. 2379. The legislative history explains the purpose of the 1962 amendments to Article 15:
The purpose of the proposed legislation is to amend article 15 of the Uniform Code of Military Justice to give increased authority to designated commanders in the Armed Forces to impose nonjudicial punishment. Such increased authority will enable them to deal with minor disciplinary problems and offenses without resort to trial by court-martial.
1962 U.S.C.C.A.N. at 2380.
The history further explains:
Under existing law, article 15 of the Uniform Code of Military Justice provides a means whereby military commanders deal with minor infractions of discipline without resorting to criminal law processes. Under this article commanding officers can impose specified limited punishments for minor offenses and infractions of discipline. This punishment is referred to as “nonjudicial” punishment. Since the punish*191ment is nonjudicial, it is not considered as a conviction of a crime and in this sense has no connection with the military court-martial system.
... It has been acknowledged over a long period that military commanders should have the authority to impose nonjudicial punishment as an essential part of their responsibilities to preserve discipline and maintain an effective armed force.
1962 U.S.C.C.A.N. at 2380-81 (emphasis added).
The legislative history also describes the need for additional Article 15 powers and highlights Congress’ intent to make Article 15 a noncriminal proceeding for the protection of service people:
The Department of Defense has stated that problems adversely affecting morale and discipline have been created in the Armed Forces because of the inadequate powers of commanding officers to deal with minor behavioral infractions without resorting to the processes of the military court-martial system. The limited nonjudicial punishment authority has proved unsatisfactory to commanders in the field. The alternative solution has been to impose a trial by summary or special court-martial. In most cases, a court-martial results in a serious impairment of the services of an officer or enlisted man. Such a conviction stigmatizes a person with a criminal conviction on his record, which not only remains throughout his military career, but follows him into civilian life. It may well interfere with his civilian job opportunities, as for example, when he is required to show on a questionnaire whether he has ever been convicted, and it may adversely reflect on him if he is involved in difficulty with civilian law-enforcement agencies. The bill, by providing increased authority for nonjudicial punishment, will enable commanders to deal promptly and efficiently with problems of discipline. At the same time, the increased nonjudicial authority should permit the services to reduce substantially the number of court-martials for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.
1962 U.S.C.C.A.N. at 2381-82.
*192A number of courts have relied on this congressional history to conclude that Article 15 nonjudicial punishment is not a criminal prosecution. See Dumas, 620 F.2d at 251; Cochran, 1 Cl. Ct. at 764; Jamison, 5 Cl. Ct. at 750.
In light of this clear intention on the part of Congress that Article 15 proceedings be noncriminal in nature, I disagree with the majority’s conclusion that a subsequent prosecution is barred by double jeopardy under this Court’s previous case law. A majority of this Court in In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993), explained that the categorization of a particular statute as civil or criminal is largely a matter of statutory construction. The first inquiry is whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for the civil or criminal label. We recognized that there would be a “penalizing mechanism” but not all punishment is criminal for purposes of double jeopardy. The fact that Congress labeled Article 15 nonjudicial punishment does not address the issue; the inquiry is whether Congress intended it be “criminal.” It is clear that Congress did not intend Article 15 proceedings to be criminal. Therefore, I believe the majority opinion is at odds with this Court’s and the United States Supreme Court’s articulation of the test for double jeopardy. See In re Young, 122 Wn.2d at 18-19; Kansas v. Hendricks, 521 U.S. 346, 361-62, 117 S. Ct. 2072, 2081-82, 138 L. Ed. 2d 501 (1997) (the categorization of a particular proceeding as civil or criminal is first of all a question of statutory construction; the legislature’s manifest intent will be rejected only where a party challenging the statute provides the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the legislative intention to deem it civil); Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997) (disavowing the double jeopardy method of analysis used in United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989) and reaffirming that the first inquiry is whether Congress intended *193the proceeding to be civil or criminal in nature). The majority ignores the clear statement by Congress that it intended Article 15 proceedings to be noncriminal in character. See Majority at 183. This is in sharp contrast to this Court’s approach in In re Young, 122 Wn.2d 1.
I find the majority’s discussion of the double jeopardy bar created by an Article 15 proceeding under military law to be incomplete. The majority states that “Under military law nonjudicial punishment is final” and “[n]or may a second punishment be imposed by court-martial following a nonjudicial punishment for the same offense.” Majority at 182 & 183 n.9. These statements are much too broad and are misleading. They are true only if the prior punishment was for a minor offense. What the majority fails to point out is that nonjudicial punishment does not always preclude subsequent court-martial of a servicemember. The federal court has explained that Congress did not intend for imposition of nonjudicial punishment to preclude the subsequent court-martial of a servicemember accused of a serious offense. United States v. Pierce, 27 M.J. 367, 368 (C.A.A.F. 1989); United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); United States v. Dire, 46 M.J. 804 (C.A.A.F. 1997). A servicemember would be given credit for any nonjudicial punishment suffered if he had been subject to Article 15 punishment and subsequently court-martialed for the same offense. However, the nonjudicial punishment is not, as the majority claims, “final under military law” and the statement of the majority that a second punishment may not be imposed by court-martial following a nonjudicial punishment for the same offense is inaccurate.
The purpose of Article 15 nonjudicial punishment is to maintain discipline in the armed forces and to avoid bringing criminal charges against a servicemember when the less serious Article 15 proceeding by the commanding officer can achieve the result of maintaining the discipline necessary in a fighting force. Congress did not intend Article 15 proceedings to be criminal prosecutions, and the federal courts have construed them to be noncriminal in *194character. Therefore, I would conclude that the defendants were not previously criminally prosecuted when they received nonjudicial punishment from their commanding officers. Military commanders have the responsibility to maintain good order and discipline in their commands. They should be able to impose the flexible punishment available at a captain’s mast without affecting the right of this State to call citizens to answer for crimes committed in the state of Washington. I do not believe RCW 10.43.040 was intended to provide a defense against prosecution after such a proceeding. I do not read that statute to immunize a military person from civilian criminal prosecution because of the imposition of Article 15 nonjudicial punishment by his or her commanding officer!
I also find the majority opinion in this case somewhat at odds with our conclusion in State v. Morley, 134 Wn.2d 588, 952 P.2d 167 (1998). A majority of this Court rejected the position of the dissent in Morley which would have held that a prior general military court-martial conviction could not be used as a part of a defendant’s criminal history when a judge sentences a criminal defendant in Washington. The majority in this case now holds that a military proceeding is a criminal prosecution which bars a subsequent criminal prosecution by the State. I find it incongruent that military proceedings cannot be used as criminal history for purposes of sentencing criminal defendants, but they are criminal proceedings for the purpose of barring a subsequent criminal prosecution by the State of Washington.
I perceive the majority opinion to be both legally unsound and to have unfortunate practical results. Under the majority, any Article 15 discipline imposed on a servicemember by his or her commanding officer will bar criminal prosecution for a crime committed off of the military base against the citizens of Washington. In Mr. Ivie’s case, he was docked one-half pay for two months, and even though he was endangering Washington citizens by driving off the military base with a suspended driver’s license while intoxicated, the State is absolutely barred from prosecuting *195him for these crimes. I do not think this is what was intended by our Legislature in barring prosecution after a prior criminal prosecution. In light of this Court’s majority decision, legislators should exercise their power to further clarify what I believe was their original intent: that only prior criminal prosecutions, which do not include Article 15 military proceedings, will bar a subsequent criminal prosecution in this state.
Dolliver, Smith, and Talmadge, JJ., concur with Guy, J.