Legal Question in Military Law in North Carolina

Seperation In Leiu of Trial... or not?

I fully qualify for a SILT. My CO signed the RLA (request for legal action) form and checked YES in block 12D, saying that if I submitted a SILT he would accept it. He also informally said to my legal clerk that he would accept it via chain of command. The CO is in Iraq at the moment.

I submitted the paperwork through my military lawyer, and once he got the documents he changed his mind and now wants to send me to a special court martial.

He made the agreement via the forms and informally that he would accept the SILT, but isn't. Can he do this? Does the paperwork mean nothing, even though it is an official document?

Basically, I am sick of being played around with about my legal matters. I am angered and confused by the chain of events that have taken place. I fear that he saw the statement that was part of my SILT package, saw that I admitted guilt, and is now pushing for the court martial. I'm questioning the legality of this issue and am being told I have no control over the situation now.

I have contacted the GI Rights hotline, and they, as a quote, told me ''The CO can do whatever he wants, basically.'' This can't be accurate and I wanted to get the opinion of a qualified lawyer on the matter. Thanks.


Asked on 3/31/09, 2:23 am

2 Answers from Attorneys
William J. Holmes Attorney at Military Law

Re: Seperation In Leiu of Trial... or not?

I do not know why the CO changed his mind about the separation in lieu of trial. I assume something happened between the time that he said he would accept it and when he later denied it. However, that is his discretion whether to approve such a request or not. You made a request and he can approve or deny it.

The statement you made in teh SILT package cannot be used against you at trial, but maybe that is what made him change his mind. He must feel that he can win at trial or that you and your counsel will not fight the case. What I would suggest is that you prepare to really fight the charge so that he may reconsider the SILT request. Usually, these are only aproved when the prosecution does not want to go to trial. They will not approve it just because you want it. Rather, everything is based upon their interests. Thus, you need to make them think that it is in their best interests to avoid a trial by making them realize that they may not win or that it will be difficult and/or expensive for them to go to trial and easier to just give you a discharge.

I hope this has helped. Please feel free to contact me directly if you have any further questions.

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Answered on 4/01/09, 11:54 am
Patrick Tracy Patrick J. Tracy, Esq, P.E.,

Re: Separation In Lieu of Trial... or not?

I don't know what the offense that you have committed. Therefore I can only speak in general terms. You need to look at this situation from the perspective of how this will affect your life for the next 40 years after your term of service is complete. The effects of a BCD or anything lower than a general discharge under honorable conditions can have an immense effect on your life, the ability to get employment with any government agency and the like. The chances of getting an upgrade, based on my experience as an attorney is less than 1 out of 5.

Think it through before you do anything!

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Answered on 3/31/09, 6:05 am


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