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The U.S. Army, the country’s largest military branch, will no longer allow military commanders to decide on their own whether soldiers accused of certain serious crimes can leave the service rather than go on trial.
The decision comes one year after ProPublica, The Texas Tribune and Military Times published an investigation exposing how hundreds of soldiers charged with violent crimes were administratively discharged instead of facing a court martial.
Under the new rule, which goes into effect Saturday, military commanders will no longer have the sole authority to grant a soldier’s request for what is known as a discharge in lieu of court martial, or Chapter 10, in certain cases. Instead, the newly created Office of Special Trial Counsel, a group of military attorneys who specialize in handling cases involving violent crimes, must also approve the decision. Without the attorneys’ approval, charges against a soldier can’t be dismissed.
The Office of Special Trial Counsel will have the final say, the Army told the news organizations.
The new rule will apply only to cases that fall under the purview of the Office of Special Trial Counsel, including sexual assault, domestic violence, child abuse, kidnapping and murder. In 2021, Congress authorized creation of the new legal office — one for each military branch except the U.S. Coast Guard — in response to yearslong pressure to change how the military responds to violent crimes, specifically sexual assault, and reduce commanders’ control over that process. As of December, attorneys with this special office, and not commanders, now decide whether to prosecute cases related to those serious offenses.
Army officials told the news organizations that the change in discharge authority was made in response to the creation of the Office of Special Trial Counsel.
As far back as 1978, a federal watchdog agency called for the U.S. Department of Defense to end its policy of allowing service members accused of crimes to leave the military to avoid going to court. Armed forces leaders continued the practice anyway.
Last year, ProPublica, the Tribune and Military Times found that more than half of the 900 soldiers who were allowed to leave the Army in the previous decade rather than go to trial had been accused of violent crimes, including sexual assault and domestic violence, according to an analysis of roughly 8,000 Army courts-martial cases that reached arraignment. These soldiers had to acknowledge that they committed an offense that could be punishable under military law but did not have to admit guilt to a specific crime or face any other consequences that can come with a conviction, like registering as a sex offender.
The Army did not dispute the news organizations’ findings that the discharges in lieu of trial, also known as separations, were increasingly being used for violent crimes. An Army official said separations are a good alternative if commanders believe wrongdoing occurred but don’t have the evidence for a conviction, or if a victim prefers not to pursue a case.
Military law experts contacted by the news organizations called the Army’s change a step in the right direction.
“It’s good to see the Army has closed the loophole,” said former Air Force chief prosecutor Col. Don Christensen, who is now in private practice.
However, the Office of Special Trial Counsel’s decisions are not absolute. If the attorneys want to drop a charge, the commander still has the option to impose a range of other administrative punishments, Army officials said.
Christensen said he believes commanders should be removed from the judicial process entirely, a shift he said that the military has continued to fight. Commanders often have little to no legal experience. The military has long maintained that commanders are an important part of its justice system.
“They just can’t break away from commanders making these decisions,” said Christensen, who’s been a vocal critic of commanders’ outsize role in the military justice system. “They’re too wedded to that process.”
The Army told the newsrooms that additional changes to DOD and Army policy would be required to remove commanders entirely and instead give the Office of Special Trial Counsel full authority over separations in lieu of trial.
The news organizations reached out to several military branches to determine how the creation of the Office of Special Trial Counsel will affect their discharge processes. The U.S. Navy has taken steps similar to the Army’s. In the U.S. Air Force, the Office of Special Trial Counsel now makes recommendations in cases involving officers, and the branch is in the process of changing the rules for enlisted members. The U.S. Marines confirmed to the news organizations that it has not yet changed its discharge system.
