The Army increasingly allows soldiers charged with violent crimes to leave the military rather than face trial
By Vianna Davila, Lexi Churchill and Ren Larson, The Texas Tribune and ProPublica, and Davis Winkie, Military Times
“The Army increasingly allows soldiers charged with violent crimes to leave the military rather than face trial” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
This article is co-published with ProPublica, a nonprofit newsroom that investigates abuses of power, and with Military Times, an independent news organization reporting on issues important to the U.S. military. Sign up for newsletters from ProPublica and Military Times.
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Stationed at Army posts thousands of miles apart, two soldiers faced a flurry of criminal charges after they allegedly assaulted women within days of each other in early 2017.
One soldier was accused of physically assaulting his wife and firing a gun as she tried to flee their home near Fort Hood in Texas. Police later found a bullet hole in a window screen.
The other told investigators in Alaska that he’d had sex with a fellow soldier who he knew was drunk and incapable of providing consent. They later found DNA evidence of his semen on her shorts.
Military prosecutors deemed the cases strong enough to pursue them in court. But the Army instead kicked the soldiers out, allowing them to return to civilian life with scant public record of the accusations against them.
The two cases are among hundreds that lay bare a long-standing but little-known practice that permits service members facing criminal charges to circumvent trial by being discharged from the military. The service members often receive negative marks on their personnel records but avoid the possibility of a federal conviction.
A federal watchdog agency in 1978 called for abolishing the practice, known as administrative separations in lieu of court-martial, arguing that it should be used only to remove service members who were unfit for the military, not to dispose of cases involving alleged criminal offenses.
Nearly 50 years later, however, the practice remains. And, in the Army, it is increasingly being used for cases in which soldiers are charged with serious crimes such as sexual assault, domestic violence or child abuse, an investigation by ProPublica, The Texas Tribune and Military Times found.
More than half of the 900 soldiers who were allowed to leave the country’s largest military branch in the past decade rather than go to trial were accused of violent crimes, according to an analysis of roughly 8,000 Army courts-martial cases that reached arraignment. The figure is a significant increase from about 30% in the previous decade.
Choosing to handle such cases administratively instead of through the courts can have serious ramifications, experts told the news organizations.
Some soldiers escape potential legal consequences: Those who may have been convicted of sexual assault won’t have to register as sex offenders, and those who could have been found guilty of domestic abuse will not be subject to federal restrictions prohibiting them from owning firearms.
“If you’re letting serious crimes go through the administrative separation route, you increase the possibility of a serial rapist, a child molester, going back into the community and doing it again because there’s no public record and no dissuasion,” said Joshua Kastenberg, a professor at the University of New Mexico School of Law and former Air Force judge advocate.
But such administrative separations also carry a stigma, particularly for service members charged with minor offenses, according to experts. Those who are granted permission to leave the military typically receive an “other than honorable” discharge. Such a designation strips service members of many veterans benefits and can look bad to employers, experts said.
Military commanders are not required to explain their reasoning when granting these discharges. But the news organizations found instances in which they have approved separations even in cases with witnesses, DNA evidence or confessions.
In the Fort Hood case, the ex-soldier was arrested for choking his girlfriend a year after the Army chose not to pursue charges against him for allegedly assaulting his wife. He later pleaded no contest to the charges involving his wife and guilty to charges related to the assault of his girlfriend. He declined an interview through a relative.
“I just wish that they would have done more,” Morgan Short, the second woman who accused him of assault, told ProPublica, the Tribune and Military Times.
Army officials declined to comment about individual soldiers’ cases.
Army Col. Christopher Kennebeck, chief of the criminal law division at the Office of Judge Advocate General, did not dispute the news organizations’ finding that these types of administrative separations are increasingly being used for violent crimes. He said they are intended for minor offenses or cases in which the Army is not able to meet the necessary burden of proof to win at trial. A separation from the Army is a good alternative if commanders believe wrongdoing occurred but do not have enough evidence for a conviction, he said.
“You have someone who still exists in society, still has the presumption of innocence to go on with their lives,” Kennebeck said. “It’s just that in the military, you might not be able to continue to serve.”
But former Air Force chief prosecutor Col. Don Christensen said once officials read charges in court against a soldier, as happened in each case analyzed by the news organizations, the government should be ready to go to trial. Backing away from those charges signals to Christensen, now in private practice, that the Army is concerned that it can’t win cases, which he said is its own problem.
“You have someone take an oath saying the charges were true, so it’s true that this person is violent, it’s true this person is a sex offender. But now I’m going to say that we’re just going to fire him and turn him back into civilian society without really addressing the issue,” Christensen said.
Soldiers charged with crimes ranging from going AWOL and smoking marijuana to rape and aggravated assault with a deadly weapon can request to leave the Army rather than go to trial.
In doing so, enlisted soldiers must acknowledge that they committed an offense that could be punishable under military law. They do not have to admit guilt to a specific crime.
After an enlisted soldier’s immediate commanders weigh in with a recommendation, a senior commander overseeing the court-martial, typically a two-star general or higher, decides whether to grant the discharge in consultation with legal advisers. Officers don’t have to admit guilt, and ultimately a Pentagon official decides whether to accept the request.
The practice has no exact equivalent in the civilian justice system.
One comparison, according to legal experts, is deferred adjudication, a process that lets people accused of certain crimes avoid a conviction if they successfully complete probation without any other violations.
A key difference is that with deferred adjudication, judges, not commanders, decide and can ultimately revoke the probation and continue with the original charges if the person fails to meet the agreed-upon conditions.
In the military, however, soldiers are free to return to civilian life once a discharge is granted and there are no stipulations for revoking the agreement if the soldier gets in trouble again. And unlike in the civilian justice system, where the public can typically access court records related to a case, limited information is available in the military because the soldier was never convicted.
[ Read about the history of administrative separations. ]
Federal lawmakers and some military appeals judges took issue with the lack of due process and growing use of administrative separations throughout the 1960s.
Perhaps the most significant critique of such separations came in 1978 when the federal government’s General Accounting Office, now known as the Government Accountability Office, released a report that called for ending the practice.
The report said that while military branches had used such separations “as an expedient way to get rid of problem people,” Congress never intended for the process to apply to criminal cases.
Releasing some soldiers while trying others for the same offense resulted in unequal treatment and limited the effectiveness of military courts, which “must enforce the law and also protect the rights of individual service members. They cannot accomplish these objectives if a major portion of criminal offenses are dealt with outside the judicial process,” the report stated.
But the military argued that eliminating administrative separations would increase the workload of its courts.
So the practice continued.
One accusation, then another
Late one March afternoon in 2017, Faustino Vallo’s wife walked into a police station near Fort Hood, the massive Central Texas Army post where her husband of more than two years worked as a bomb technician.
Vallo had grabbed her by the neck and held his Glock handgun to her head during an argument nine days earlier, she told Killeen police. According to records detailing her account, Vallo told her that her life was over and fired a gun as she ran from the house. When she returned, he told her he didn’t mean for the gun to go off, according to her account in partially redacted military investigative files. Officers later found a bullet hole in a window screen.
About six months later, as the Bell County Attorney’s Office was pursuing misdemeanor charges against Vallo, it received an email from an Army attorney. She asked that the case be transferred to Fort Hood, which had decided that it wanted to proceed with aggravated assault charges against the soldier, a private first class.
Another email arrived in March 2018, a year after the woman reported the alleged assault. Vallo’s case was scheduled to go to trial at Fort Hood at the end of the month but the commanding general had instead accepted his administrative separation request, an Army captain wrote to the county attorney’s office. He would be permitted to leave the Army within a week and receive an “other than honorable” discharge.
“He will not have been tried for the charges we brought against him,” the captain wrote.
A Fort Hood spokesperson declined a request to interview an Army attorney involved in Vallo’s case.
After the Army discharged Vallo, the Bell County Attorney’s Office decided to prosecute him as it had initially intended. That process took another year.
During that time, Vallo was arrested again for domestic assault, this time for attacking his girlfriend, Morgan Short, in Coryell County.
In early April 2019, Short had just poured herself a glass of wine when she and Vallo got into a disagreement. She said Vallo, who was also drinking, suddenly knocked the glass out of her hand and then pushed her down against the white-tiled living room floor. He put the full weight of his body on her back and began to choke her and then bite her, Short said in an interview with the news organizations.
Eventually, she said, Vallo let her go. She ran to her bedroom closet and prayed to God not to let her die. When Short tried to leave the house, she said Vallo put a gun in his mouth in front of the couple’s infant son and the young daughter he shared with his estranged wife.
“I don’t know why he didn’t kill me because I really feel like he was going to,” Short recalled.
Police in Copperas Cove, where the attack occurred, refused to release an incident report, but a story in the Killeen Daily Herald said officers observed several fresh injuries on Short.
On June 10, 2019, Vallo pleaded guilty in Coryell County to choking Short. He was fined and given five years deferred adjudication.
Days later, he pleaded no contest in Bell County to discharging a firearm for the incident involving his wife and received nine months deferred adjudication. He would not serve jail time if he followed certain conditions including that he have no access to firearms during that period.
Vallo, his estranged wife and the civilian defense attorney who represented him in the Bell County case declined interview requests for this story.
Bell County Attorney James E. Nichols said he wasn’t sure why the case took so long after his office took it back from the Army. He said he did not know if his attorneys were aware of Vallo’s Coryell County plea because prosecutors generally don’t get alerted that someone with a pending case has been arrested in another county.
Such information is critical and could have resulted in a harsher sentence in the Bell County case, said Miltonette Craig, an assistant professor in Sam Houston State University’s Department of Criminal Justice and Criminology. Nichols agreed more information about the case could have affected the judge’s decision.
Short also did not know about Vallo’s conviction in Bell County when he persuaded her to let him back into her life. It didn’t take long before he became aggressive again, records show.
On New Year’s Day 2020, Vallo had chugged a bottle of vodka and threatened to “beat my ass and leave me on the floor crawling,” Short recalled in an interview with the news organizations. At one point, she said, he locked her in the bedroom and spit in her face.
After struggling to get an answer from 911 operators, Short said she called her family, who eventually got through to police. Officers were dispatched to the home for a “violent domestic,” according to a partial incident report released by law enforcement.
At the time of the report, Vallo was still under probation for both assaults. He wasn’t arrested. Short believes it was because he’d threatened her with physical violence but had not actually assaulted her.
In June, a Coryell County judge extended Vallo’s probation in connection with Short’s 2019 assault after he was twice arrested for drunk driving. The judge, who did not return a call for comment, required him to attend Alcoholics Anonymous meetings twice a week.
The drunk driving arrests were a violation of Vallo’s probation conditions. Craig said the judge could have revoked Vallo’s deferred adjudication and convicted him of the assault charge.
“I don’t remember feeling hope”
The true number of service members across the armed forces who were allowed to separate from the military instead of facing trial for serious charges is difficult to know.
Compared with other branches, the Army released the most complete court data to the news organizations under the federal Freedom of Information Act. Even the Army’s records are limited because they provide data only for cases that reach arraignment, meaning that the number of soldiers who were discharged as part of the practice is higher than what the news organizations’ analysis shows.
One area that provides some insight into the practice across all branches is the military’s handling of sexual assault. Congress has mandated more detailed reports on such cases as part of a larger crackdown.
According to those reports, more than 1,000 service members who were charged with sexually assaulting an adult from 2012 to 2021 were permitted to leave the military rather than face trial. Of those, 726 were in the Army.
Overall, the Army had the highest rate of service members — about 1 in 4 — who left despite being charged with sexual assault, according to an analysis of the reports. (The next highest branch was the Air Force, which had a rate of nearly 1 in 5.)
Tony Thomas, an Army specialist, was one of the soldiers.
A female soldier accused Thomas of sexually assaulting her on March 5, 2017, after they’d spent the night celebrating her 24th birthday in Anchorage, Alaska, where both were stationed. The woman, who spoke to the news organizations, agreed to be identified by her middle name, Hope.
By the end of the night, Hope was “obviously intoxicated,” a friend later told investigators. Thomas and a friend helped her to her barracks room because she couldn’t walk on her own. The friend then left, according to partially redacted investigative files that reference security footage from outside of the room. Thomas stayed behind.
Hope told investigators that she woke up to Thomas groping and kissing her breasts. She recalled him taking off her pants, turning her over and shoving her face into the futon. She said that she told him to stop but that he continued to sexually assault her, according to the files.
Once Thomas left, Hope went to the friend’s room and said she’d slept with him and he would not stop when she told him to. “I feel horrible. I kept saying ‘no, no stop’ but he didn’t,” Hope said, according to her friend’s account in the investigative reports. Maybe it was her fault, Hope told her friend, because she was drunk and wearing “little” shorts. She then reported the assault to military authorities.
Later that day, Thomas acknowledged that he knew Hope was intoxicated and was incapable of providing consent, according to an investigator’s account of the interview. He said he’d made a mistake and admitted to the investigator that he sexually assaulted her, records show.
Thomas declined to comment through a relative, who maintained the soldier’s innocence and said the punishment he received was “unjust.” His family indicated they plan to challenge his discharge status.
A DNA test of the woman’s shorts later detected Thomas’ semen. An Army prosecutor determined in July 2017 that there was probable cause Thomas committed sexual assault, records show.
Despite having an attorney and meeting with an investigator on the case, Hope said she was not aware of all of the evidence collected by prosecutors.
She began to feel like no one around her offered encouragement.
“I don’t remember feeling hope,” she said. “I don’t remember feeling confident that ‘OK, this is going to go before a judge and they’re going to actually believe what happened or they’re going to take me seriously.’”
More than a year after she accused Thomas of assault, Hope met again with an investigator on the case. By then, she had transferred to Fort Hood to avoid seeing her alleged attacker. She and her new husband had just learned she was pregnant. “I finally just kind of mulled it over and I was like: ‘I don’t want to take this to trial. I don’t want to sit on trial pregnant, reliving something that I want to just go away.’”
Hope said the investigator laid out various options, including that Thomas could be discharged instead of going to trial. She said that path seemed best to her at the time.
“I was trying to move on in my life,” she said.
Kennebeck, the Army’s criminal law director, said that commanders consider victim input and preference when deciding whether to take a case to court-martial or grant an administrative separation.
It is possible, however, to pursue a sexual assault case when a victim doesn’t want to testify, said Liz Boyce, general counsel and director of policy and legal at the Texas Association Against Sexual Assault. In the civilian system, she said, prosecutors commonly offer plea deals in such cases. The key is ensuring the victim is consulted about that decision, she said.
But discharges in lieu of trial are not plea bargains, so there is no conviction on a person’s record. The local district attorney in Anchorage could have considered pursuing charges against Thomas, under an agreement with the military, but it’s not clear if the Army shared information about his case.
Boyce said deciding not to pursue any possible legal punishment is “dangerous, frankly.”
“They’re not going to have any kind of repercussions the way a guilty verdict would have, the way a felony is going to follow you,” Boyce said.
After six years and a lot of therapy, Hope says she wishes she’d chosen a different course.
She believes administrative separation “was a Band-Aid” for her case. “If I could go back now and know what I know now, no, hell no, I would have taken it to court,” she said.
For her part, Short wishes the Army had done more. She continues to wonder why military officials didn’t take Vallo to trial when his wife accused him of assault.
Vallo always gave her different explanations for why he was discharged from the Army, Short said. There was no easy way for her to access any documentation about that decision. It’s not anywhere online.
“It kind of blows my mind that they just kicked him out. And then didn’t proceed to press any charges,” Short said. “That’s insane to me. They’re enabling people to keep acting this way.”
History of these separations
It’s not clear when administrative separations in lieu of court-martial began, but experts and records show that at least since the 1950s their primary purpose was to remove service members from the military who commanders believed were not fit to serve. That meant those who got in trouble for minor misconduct or military-specific offenses like being chronically late to formation, said Joshua Kastenberg, a professor at the University of New Mexico School of Law and former Air Force judge advocate.
The practice grew in popularity as about 2 million people were drafted into the military during the Vietnam War, bringing a slew of discipline problems. Near the beginning of the war, the various branches granted 424 such discharges. The number ballooned to nearly 27,000 soon after the war ended in 1976, according to a federal watchdog agency’s report.
Many soldiers who were discharged faced charges for being AWOL and other minor misconduct, according to experts and other archival records, which also indicated administrative separations were rarely used for serious criminal offenses at the time.
“Let’s be honest, you can’t court-martial everyone who is a discipline problem and who doesn’t want to be in the Army,” Fred Borch, a retired Army colonel and military history expert, said in an interview. “So I would say that the compromise was, ‘Hey, we have an administrative way to get rid of people who don’t want to be here without really being overwhelmed with courts-martial.’”
Borch, who served as an Army lawyer for 25 years before retiring in 2005, could not recall when the practice evolved to include soldiers accused of criminal acts but said, “You wouldn’t take a discharge like this for a rape or a murder or a robbery because, my general opinion would be, the person has got to go to jail.”
About the data: How we analyzed administrative separations in lieu of court-martial
To examine the Army’s use of separations and resignations in lieu of trial, ProPublica, The Texas Tribune and Military Times used data from the Army Court-Martial Information System, which covers cases that were referred to the Army’s two highest trial courts dating back to 1989. The database does not include cases that were dismissed or resolved before they reached arraignment, which is a formal hearing when charges are read to the defendant.
The newsrooms analyzed cases in which soldiers had their charges withdrawn or dismissed administratively and were allowed to leave the service instead of facing trial, processes most commonly known as Chapter 10s for enlisted soldiers or resignations for the good of the service for officers.
We categorized crimes as violent using the National Institute of Justice’s definition, which counts cases in which a victim is harmed by violence. Such crimes include rape, sexual assault, physical assault, murder and robbery.
For our analysis, we included charges that fell under the following articles of the Uniform Code of Military Justice, standardized to the most recent edition of the Manual for Courts-Martial: 118 (murder and homicide), 119 (manslaughter), 120 (sexual assault and rape of an adult), 120B (sexual assault and rape of a child), 122 (robbery), 128 (physical assault), 128A (maiming) and 128B (domestic violence). Additionally, charges of striking or assaulting officers (commissioned and noncommissioned) are included in the analysis. (These were charged under articles 89, 90 and 91.) We classified cases with at least one of the above charges as violent, regardless of any other accompanying charges.
Our reporting on administrative separations focused on the Army, which is the nation’s largest military branch, has a significant presence in Texas and maintains the most complete court databases compared with the other military branches. Neither the Department of Defense nor any of the other branches provided separations data broken down by the type of charge.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/04/10/military-army-administrative-separation/.
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