Acquittal at court-martial is a complete defense to criminal liability for the charged conduct. It is not, however, a complete defense to administrative separation based on the same underlying facts. The military’s administrative separation system operates under a preponderance of the evidence standard, which is significantly lower than the beyond a reasonable doubt standard applied in criminal proceedings. A panel that could not unanimously find guilt beyond a reasonable doubt may still have generated a factual record that a separation authority can use as the basis for an administrative action.
This reality is one of the most important and least understood features of the military justice system. Service members who win at court-martial sometimes believe that the fight is over, only to find that a separation board has been convened using the same events as the basis for an administrative discharge. Preparing for the possibility of post-acquittal administrative action begins during the trial itself, because the record created at court-martial will follow the case into any subsequent proceeding.
The Independence of Administrative Separation From Criminal Proceedings
The military justice system and the administrative separation system are parallel tracks governed by different legal frameworks, administered by different decision-makers, and applying different standards. A court-martial is a criminal proceeding in which the government must prove guilt beyond a reasonable doubt before any punitive consequence can follow. An administrative separation board is a personnel action in which the government must show by a preponderance of the evidence that a basis for separation exists, and in which the outcome is framed as a personnel decision rather than a criminal punishment.
The independence of these systems means that information gathered in a criminal investigation can be used in an administrative proceeding, and that the outcome of the criminal proceeding does not determine the outcome of the administrative one. A service member who is acquitted of all charges at court-martial has established that the government could not meet the criminal standard of proof. They have not established that the administrative standard of proof cannot be met, because the two standards are different and the factual record that emerged from the court-martial is available to the separation authority as a starting point for the administrative proceeding.
How the Same Underlying Conduct Supports Both Processes
The same underlying conduct that formed the basis for a court-martial charge can form the basis for an administrative separation action because the two proceedings evaluate different questions. The court-martial asks whether the accused committed a criminal offense beyond a reasonable doubt. The administrative separation process asks whether the conduct that was alleged, evaluated under a preponderance standard, constitutes a basis for separation under the applicable regulation.
The factual record developed during the criminal investigation, the testimony taken at the Article 32 hearing, and the evidence produced at trial are all available to the separation authority as a starting point for the administrative proceeding. A service member whose defense strategy at trial was to challenge the government’s proof rather than to affirmatively establish that the conduct did not occur may have done little to protect themselves from administrative separation, because the preponderance standard does not require the same quality of proof that the criminal standard demands.
The Lower Standard of Proof in Administrative Separation
The preponderance of the evidence standard requires only that the evidence makes it more likely than not that the basis for separation occurred. This is a significantly lower bar than the beyond a reasonable doubt standard applied in criminal proceedings. Evidence that was insufficient to convince a unanimous panel beyond a reasonable doubt may readily satisfy a preponderance standard before a separation board composed of a different decision-making body applying a different legal standard.
Service members who are acquitted at court-martial sometimes ask how they can be separated administratively on the same facts. The answer is that the same evidence looks different when evaluated under different legal standards, and the institutional decision about whether a service member should remain in the military is deliberately not subject to the same procedural protections as a criminal conviction. Congress has determined that the military’s personnel management interests justify a lower standard for administrative actions, and courts have consistently upheld this framework.
Why Acquittal at Court-Martial Does Not Bar Administrative Action
Double jeopardy protections apply to criminal proceedings and prevent the government from trying a person twice for the same criminal offense after acquittal. Administrative separation proceedings are not criminal proceedings, and the double jeopardy clause does not apply to them. A service member can be acquitted of a criminal charge and then separated administratively based on the same underlying conduct without any double jeopardy violation, because the administrative proceeding is a personnel action, not a criminal prosecution.
Courts have repeatedly upheld this distinction, rejecting arguments that an acquittal should preclude administrative action based on the same events. The rationale is that the purposes of criminal punishment and administrative separation are different: criminal punishment is punitive while administrative separation is a personnel management action, and the constitutional protections that limit the government’s ability to punish twice do not limit its ability to manage its workforce through administrative means.
Defending Against Separation That Is Filed After an Acquittal
The defense against post-acquittal administrative separation must be built from the trial record and supplemented with additional evidence that the separation board can weigh under the preponderance standard. The acquittal itself is powerful evidence that the most thorough examination of the evidence did not establish the conduct to the highest applicable standard, and it should be presented to the board prominently and persuasively.
Additionally, the defense must develop the affirmative case for retention that may not have been fully presented at trial. Character witnesses who can speak to the service member’s value to the command, documentation of their service and contributions, and evidence that the conduct alleged represents an aberration from an otherwise exceptional record are all part of the mitigation and retention argument before the separation board. A service member who was acquitted but who enters the separation board with nothing but the acquittal to offer is not as well protected as one who presents a complete defense and retention package.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.