Navy Separation in Lieu of Trial by Court-MartialMarch 8, 2020
Sailors who are undergoing a Court-Martial may hear about something called a separation in lieu of trial by Court-Martial. This is a request from a Sailor to be administratively discharged instead of having to face a Court-Martial. If the request is approved, all charges are dismissed, and the Sailor is discharged administratively.
A Sailor is eligible to submit a request if charges have been preferred against him/her and at least one of the charges authorizes a punitive discharge under the UCMJ. Such a request is nothing more than a memorandum, usually prepared by a military attorney, that requests a separation in lieu of trial by Court-Martial. The request must admit guilt of a charged offense or a lesser included offense, for which a punitive discharge is authorized. This acknowledgement of guilt cannot be used against a Sailor later at the Court-Martial if the request is denied.
Usually, the General Court-Martial Convening Authority is the approval authority; however, there are situations where the Special Court-Martial Convening Authority or the Chief of Naval Personnel can be the approval authority. If the request is approved, the charges against the Sailor are dropped and he/she is discharged, usually within 10 days. Sailors overwhelming receive an Other than Honorable Discharge in this situation; however, General discharges are authorized. Unlike like the Army, Air Force, and Marines, Honorable discharges are not authorized for a separation in lieu of trial by Court-Martial.
It is important to note that once a request is submitted, it can only be withdrawn with the consent of the approval authority. This is one of the many reasons Sailors should consult with an experienced military attorney before submitting one.
This type of request can be beneficial for Sailors in many situations; however, it is a gamble. Sailors should consider requesting separation in lieu of trial by Court-Martial when they are guilty of some of the more minor offenses charged, but not the more serious ones. For example, a Sailor charged with AWOL for 6 months and sexual assault may admit that they were AWOL (which is generally easy for the Government to prove) but vehemently deny that they are guilty of sexual assault. In this situation, the Sailor would likely receive a punitive discharge at trial anyway (for the AWOL conviction), and also be facing jail time and possible sex offender registration (if convicted of the sexual assault charges). Instead of taking these risks, a Sailor may decide to request a discharge in lieu of trial by Court-Martial in hopes of avoiding a federal conviction, punitive discharge, jail time, and possible sex offender registration. Of course, it is a gamble, because a Sailor in this situation may also go to trial and be completely acquitted.
You may be wondering why the Government would ever accept such a request. Primarily, it is when the Government is worried that they may not achieve a conviction at trial and want the Sailor out of the military. For example, often times a complaining witness accusing a Sailor of sexual assault will decide they don’t want to testify. Without his/her testimony, the Government may be worried that they can’t prove their case. Therefore, in this situation, both the Sailor and the Government may not want to gamble with a jury, and a separation in lieu of trial by Court-Martial works for both parties. Another reason the Government may approve a request is when they are simply overworked. A case may require a lot of work for them to achieve a conviction. The JAGs may not want to do this work and therefore might be more likely recommend approval.
Before submitting a separation in lieu of trial by Court-Martial request, a Sailor has a lot to consider. It is a complicated process and the assistance of a military attorney who understands it is recommended.
This article was written by Attorney Matthew Barry