PSA: Statutory Bar To Upgrading Discharge

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Today’s public service announcement involves discharge in lieu of separation. Every branch calls it something a little bit different; in the Army, it’s called a Chapter 10, the Air Force used to call it a Chapter 4, now they call it a Chapter six, the Navy and the Marine Corps call it a SILT (a separation in lieu of trial). They all have generally the same effect. You’re facing a court martial, you want to avoid confinement. You want to avoid a conviction. And so you put in a packet that says, essentially, to avoid trial, that you will take an administrative separation. What that paperwork never tells people on what you really need to know and understand is that if you do that, there is a statutory bar. A statutory bar to ever trying to upgrade your discharge. Particularly at this time of year, we get a lot of calls from people who are asking about discharge upgrades.

Unfortunately, we have to tell a significant portion of them that we can’t even apply on their behalf because there is a statutory bar, meaning by statute, the law says if you accepted a discharge in lieu of going to a court martial, you may not ever apply or receive an upgrade to your discharge. I really wish more people knew that when they were making that very tough decision about whether or not to go to trial or to accept this form of an administrative separation. In lieu of trial, please do not construe this as legal advice to tell anyone similarly situated that they should not accept this form of a plea bargain. I cannot and will not give an opinion about whether or not you should or not. This is one piece of information that I think is woefully missed when people are giving advice about whether or not to take these cases forward or to take this discharge in lieu. It’s really disappointing to have to tell people that this exists, but unfortunately that is the way that it is.

Jocelyn Stewart is a UCMJ court-martial attorney who specializes in defense of allegations of sexual assault for all branches of the military worldwide.

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