Part 1: Administrative Discharge
All branches of service have a policy to maximize jurisdiction over their servicemembers. Meaning if you are arrested by civilian authorities, the military will likely try to get jurisdiction over your case. If they succeed, your case will be processed under military law in accordance with the Uniform Code of Military Justice.
However, for more serious offenses – offenses like domestic violence – civilian authorities are more likely to retain jurisdiction. If that happens, your case might end up on the prosecutor's domestic violence (“DV”) docket where it will be processed under state law.
The challenge here is that the definition of “domestic violence” varies under the laws of each state. In Maryland, for example, acts of physical assault, stalking, revenge pornography, and certain sexual offenses are all encompassed within the state crime of domestic abuse. More challenging still is that if you are arrested or charged with a crime of domestic violence or domestic abuse under state law, you must also consider the secondary effects to your military career. For instance, does your arrest or conviction mandate an administrative discharge from the military? (Click here to read our second post on this topic: firearms prohibition.)
IS ADMINISTRATIVE DISCHARGE MANDATORY IF I AM CONVICTED IN A DV CASE?
The outcomes of the case can vary drastically, and depending on the nuances of each case, may or may not prompt administrative discharge proceedings from the military.
As a rule, a civilian conviction IS a basis for discharge from the armed forces, no matter your branch of service. HOWEVER, what constitutes a “civilian conviction” and whether discharge initiation is mandatory varies by service.
· Air Force: Department of the Air Force Instruction (DAFI) 36-3211 states that a “civilian court conviction” will prompt a mandatory initiation of discharge procedures (a waiver by command can still be pursued, but the discharge process must still be initiated). A civilian court conviction is defined as “conviction by civilian authorities or an action equal to a finding of guilty.” In the Air Force, “an action equal to a finding of guilty may occur despite the absence of a specific finding of guilty by the court.”
· Army: Army Regulation (AR) 635-200 states that a soldier may be considered for discharge when convicted by civil authorities or when action is taken that is tantamount to a finding of guilty. Initiation of a chapter action is mandatory only if (1) a soldier is convicted of a sex offense or (2) the soldier is given parole or probation and the civilian authorities refuse to relinquish custody, causing an undue burden to the Army.
· Navy & Marine: Naval Military Personnel Manual (MILPERSMAN) 1910-144 states members may be separated based upon civilian convictions or actions tantamount to (1) a finding of guilt; (2) adjudication withheld; (3) deferred prosecution; (4) entry into an adult pretrial intervention program, or (5) any similar disposition of charges, which includes the imposition of fines, probation, or community service.
Below are some common scenarios and outcomes of DV cases adjudicated by local courts. Read on to see whether the military member would be subject to administrative discharge.
COMMON OUTCOMES OF DV CASES: WILL I BE DISCHARGED?
Scenario 1: The servicemember is arrested for assault against his spouse. The case is placed on an inactive “stet docket” with conditions that the member completes a batter's intervention course and commits no further misconduct for a specified period of time. If the member successfully completes the course and stays out of trouble, the charge is dismissed.
In this scenario, there is no “civilian conviction” or a “finding of guilty” that would likely form a basis for discharge in the Air Force or the Army. In the Navy, however, this is likely akin to a pretrial diversion that could form a basis for discharge. Nevertheless, pursuant to Navy regulations, this discharge would not be mandatory but could be initiated at the discretion of command.
Scenario 2: The servicemember is arrested for assault against a spouse and is given “probation before judgment.” In this situation, the member must plead guilty under oath, but the judge will defer entering judgment. After pleading guilty, the judge will order probation, and if the member successfully completes probation, the guilty plea is subsequently vacated.
In this scenario, the only difference is that the servicemember is required to plead guilty, which could now prompt an optional discharge in the Army and Air Force for an action “equal to a finding of guilty.”
Scenario 3: The servicemember pleads guilty to assaulting his spouse or is found guilty pursuant to a jury or bench trial.
In this situation, the servicemember has been convicted of a crime of domestic violence. Accordingly, this conviction can form the basis for discharge in any service.
In each of these scenarios, whether a servicemember faces administrative discharge depends on the state court's decision and if it amounts to a civilian conviction, or actions deemed equivalent to a civilian conviction. If you have questions about how a civilian arrest or charge might impact your military career, we can help.
In domestic violence cases, it is advisable to not only seek experienced civilian counsel to defend your case, but it is equally important to consult well-versed military counsel to assess how your civilian arrest will impact your military career and to protect your rights in the process. Our thorough knowledge and experience in this practice area lends itself to providing you valuable advice throughout an undoubtedly stressful process. Let us help you to reach the best resolution possible. Give us a call today at 301-952-9000.
DISCLAIMER: The information above is for general informational purposes only. No attorney-client relationship is intended or created by this information. Each individual situation is different and therefore a formal in-person consultation is necessary before any specific advice may be relied upon as appropriate and accurate for a given situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice you may rely upon. We serve clients anywhere in the world, with in-person consultations available at our Suitland, MD office — right next to Andrews Air Force Base — for clients in Maryland and Virginia