General. Separation of an accused in lieu of trial by court-martial is an administrative procedure that is available to resolve disciplinary matters and may be used in appropriate cases. Whether such administrative action is appropriate in a given case is a matter within the discretion of the approval authority. DOD and service regulations detail the procedures and requirements for such action. Generally, an accused initiates the request and, if approved, the accused is separated from military service. In exchange for such voluntary separation, the charges against the accused are dismissed. No regulation specifically authorizes retirement in lieu of court-martial; however, no regulation prohibits such action. A retirement-eligible servicemember may not be administratively discharged without the member’s consent. In other words, only a punitive discharge, awarded at court-martial, will divest retirement. Thus, in a given case, it may be appropriate to retire an individual instead of trying that person at court-martial. Additionally, an officer may be retired at a grade lower than the highest grade in which the officer served. While separation in lieu of court-martial is administrative in nature, the existence of such a procedure is recognized in the Military Rules of Evidence. Specifically, statements made in the course of a request for separation in lieu of court-martial, including admissions or acknowledgments of guilt, are not generally admissible in a court-martial.
Procedure and Approval Authority for Enlisted Personnel. DOD regulations provide the details regarding the procedure for the separation of enlisted personnel in lieu of court-martial. In addition, Service policies and procedures apply. There are three requirements that must be met when and accused requests discharge in lieu of court-martial. First, charges must be preferred against the accused. Second, the authorized maximum punishment for the offense, upon which separation is to be based, must include a punitive discharge. The Manual for Courts-Martial identifies those offenses that may be punished by a punitive discharge. Finally, there must be an assessment made that the accused is unqualified for future military service. This determination may be based on the seriousness of the charged offense(s) and the related circumstances, as well as other factors related to the service of the accused.
A request for discharge in lieu of trial by court-martial must also meet several requirements. Specifically, the request must be in writing and signed by the accused. The accused must be afforded the opportunity to consult with legal counsel and if legal counsel is sought, counsel must sign the request. Additionally, in the request the accused must state that he or she understands the elements of the charged offense and the consequences of administrative separation. This understanding must also acknowledge the possibility of an adverse characterization of service. The discharge case file must also contain either an acknowledgement that the accused is guilty of an offense for which a punitive discharge is authorized or a summary of the evidence supporting the guilt of the accused. Statements made by the accused or defense counsel in connection with the discharge request are not admissible against the accused in a court-martial should the discharge request be disapproved.
In most cases, the approval authority for discharge in lieu of court-martial is the appropriate General Court-Martial Convening Authority. The sole exception to this is that a Special Court-Martial Convening Authority may approve separations that are based only on the offense of unauthorized absence of greater than 30 days.
Procedure and Approval Authority for Officers. Service regulations provide the details regarding the procedure for separation of officers in lieu of court-martial. Generally, the request procedures are similar to those relating to enlisted personnel. The primary difference is that the Secretary of the applicable service is the approval authority. The reason for this is that such requests are really requests by the officer to resign his or her commission. Officer commissions are held at the pleasure of the President, who has delegated resignation approval authority to Service Secretaries.
Types of Discharges. Normally, requests for administrative discharge in lieu of trial by court-martial are characterized as discharges Under Other Than Honorable Conditions (UOTHC). There are three types of administrative discharge characterizations: Under Other Than Honorable Conditions (UOTHC), General (under Honorable Conditions), and Honorable. The serious nature of the misconduct and the circumstances warranting trial by court-martial generally support the appropriateness of a UOTHC discharge. Characterization of service as General (under honorable conditions) is authorized only where appropriate. A General discharge may be appropriate, for example, if the offense is relatively minor or if the service of the individual is otherwise particularly meritorious. An Honorable discharge is only authorized if the individual’s record of service is so meritorious that any other characterization would be inappropriate.