a Better Bubble™
This story discusses sexual assault.
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Jessica Lancaster didn’t want to tell the panel of three strangers in front of her about the moment her chiropractor insisted she lift up her shirt.
How Kelby Martin’s breathing became heavier as he groped her breasts, which had been healing from surgery; how after he touched her chest, he didn’t follow through with any type of chiropractic treatment; how she left his office in August 2021 in a haze.
But Lancaster wanted to sue Martin to hold him accountable, and before she could do that, Utah law required her to make her case to the panel.
The panel concluded last August that Martin had departed from the normal standard of care, Lancaster’s lawyers later disclosed in a court filing. In response to a request for comment, Martin’s lawyer pointed to court papers in which the chiropractor denied Lancaster’s allegations against him. The case is pending; his license remains in good standing with the state.
There was a time when a majority of states had adopted malpractice screening panels in some form. A 1984 analysis by the American Medical Association found 30 states had implemented panels at some point. The goal was to cut down on frivolous lawsuits and encourage settlements of legitimate claims.
Over the years, many of those states found these panels ineffective or in violation of their constitutions, and some did away with them entirely. But Utah remains one of 16 states where patients still must spend time, money for legal services and emotional energy recounting to a panel how a medical professional they trusted hurt them, according to a tally from the National Conference of State Legislatures. The Utah system has processed, on average, about 300 cases per year for much of the last decade, according to state data.
“It’s just one more time we have to tell our story,” Lancaster said. “We relive it. I think it’s so unnecessary.”
That extra step is mandated but can feel pointless to plaintiffs. Even if the Utah panel says a claim is meritless, they remain free to sue, and several attorneys told The Salt Lake Tribune and ProPublica they routinely go on to win jury verdicts or settlements in such cases.
Medical providers contend the process has a purpose. Michelle McOmber, CEO of the Utah Medical Association, said it’s common for potential plaintiffs to accuse a broad range of providers. The information sharing that happens during a panel hearing, she said, can help both sides focus on those who may have harmed the patient.
The state agency that administers the panels also asserts that they are “highly effective in ferreting out frivolous claims, as it is rare for a case deemed without merit to move forward,” said Melanie Hall, spokesperson for the Utah Department of Commerce’s Division of Occupational Licensing. The division’s data shows that over the last decade, only 4% of the cases considered by the panels were considered meritorious.
But there is no way to independently assess DOPL’s claim that nonmeritorious claims rarely move forward — because Utah is one of six states where panel rulings are kept secret from the public. And state lawmakers have not asked the division to track how cases are resolved after a panel’s judgment.
Utah law does require DOPL to compile whether claims heard by the panels are later filed as lawsuits. But it is not compiling this data, division director Mark Steinegal said in an email responding to The Tribune’s request for that data.
No one in Utah — including legislative auditors — has been able to prove that the prelitigation panels are effective at reducing litigation.
Prelitigation panel hearings are held in a conference room at the Heber Wells Building in Salt Lake City. (Trent Nelson/The Salt Lake Tribune)Soon, sexual assault victims who say they have been harmed by medical workers will become exempt from this process. Last month, the Utah Legislature passed and Gov. Spencer Cox signed a bill clarifying that sexual assault is not considered health care, and such claims are not governed by the state’s medical malpractice act. So those who say they have been harmed after the law goes into effect — May 3 — will be able to file civil lawsuits against alleged abusers without appearing before a panel.
The new law followed a recent investigation by The Tribune and ProPublica that detailed how patients who say they were sexually assaulted by providers faced more hurdles and were treated more harshly in Utah’s civil courts than those abused in other settings.
Now some are calling for the state to abandon the panels altogether. Those critics, mostly personal injury lawyers, say it’s time for Utah to overhaul its system.
“It’s often being used as a tool to make access to justice for individuals harder, more expensive and more time-consuming,” said Jeff Gooch, a Utah personal injury attorney who has also worked as the chair of a prelitigation panel.
An “Arbitrary Delay” or Helpful Process?Beginning in the 1970s, most states adopted some type of screening step for those who want to sue a health care provider — one of several reforms made in response to fears that the cost of health care was rising because of an increase in civil lawsuits and “runaway juries” doling out multimillion-dollar payouts.
But it became clear the system wasn’t always working the way it was intended. In 1979, Missouri’s Supreme Court ended its panel process after finding it caused a “useless and arbitrary delay.” And in 2019, Kentucky’s high court struck down its law after it had been in effect for just a year, finding it caused an unconstitutional delay in people’s ability to access the courts.
Since the panels were added to Utah’s medical malpractice law in 1985, no one, including state auditors, has been able to show whether they have had a meaningful impact on weeding out frivolous cases or reducing the number of medical malpractice cases filed.
Prelitigation panel hearings are held in this Utah Department of Commerce conference room in the Heber Wells Building. (Trent Nelson/The Salt Lake Tribune)One Brigham Young University law school study from 1989 surveyed Utah attorneys who had participated in panels in their first two years of existence. The researchers concluded that the program was ineffective: They found that an overwhelming majority of the attorneys surveyed “stated that their opinion of the case did not change as a result of the hearing.”
“The procedure does not foster settlement,” one attorney wrote in a survey response. “It only gives the medical provider more protection by the mandated steps required before litigation can be pursued. It is another way for medical providers to avoid liability. I believe it should be done away with.”
Five years after that study was published, Utah legislative auditors took a look at the panel process. Their 1994 audit found that only 8% of the cases that were reviewed by Utah’s panel during a five-year period beginning in 1985 were settled before a lawsuit was filed. Some 60% went to court. The remaining cases were dropped without being filed in court.
“We could not find an objective way to determine whether the prelitigation process has been a success,” the auditors concluded.
Utah legislators in 2010 put an extra hurdle into the prelitigation panel process: Patients who wanted to file a lawsuit after receiving a “nonmeritorious” opinion had to find an expert who would disagree with the panel and explain why their case had merit — a process that could cost thousands of dollars. That added obstacle remained in place for nearly a decade until the Utah Supreme Court in 2019 found it unconstitutionally blocked access to the courts.
Despite no concrete evidence of the panels’ effectiveness, Steinegal said the feedback he has gotten from attorneys suggests that the prelitigation process is valuable.
“I have heard from both plaintiffs and counsel for defendants that the process is effective in achieving early discovery of the issues, long before the formal procedures that take place in court,” he said. He added that the process is worthwhile “if for no other reason than it accelerates information-sharing.”
Brian Craig, the current prelitigation panel chair, echoed Steinegal’s assertion that the panels ferret out frivolous cases. In a recent Utah Bar Journal article he authored, Craig gave the example of a woman who claimed that the physician who removed her appendix also removed one of her ovaries. A later ultrasound, he said, showed that she still had two ovaries.
“The Cards Are Stacked Against You”Several attorneys who spoke to The Tribune and ProPublica said the extra cost and delay caused by the panels provides little benefit.
Gooch thinks the bigger problem is the long wait before a suit can be filed: “Memories fade. Excitement fades. Often people’s lives fade — especially if they’re ill.”
Ed Havas, a personal injury attorney who has practiced in Utah for more than 40 years, said it's common for attorneys to get a nonmeritorious finding from the prelitigation panel and to go on to win that case, either in a settlement or a jury verdict.
He said attorneys typically move forward because they have reviewed medical records and consulted an expert — and believe they can win. He also pointed out that panel members weigh in before plaintiff attorneys have all the evidence they will seek to support their case, since the disclosure of documents happens after a case gets into court.
The panel is less formal than a court hearing, and potential plaintiffs are not required to join their attorneys in meeting with the panel, like Lancaster did. Still, Craig wrote in his Bar Journal article, “attendance by parties” is viewed favorably by the panel and signals that both sides are taking the process seriously.
Critics also include a state legislator who works as a personal injury attorney and has been a panel member. Utah State Sen. Mike McKell — who introduced the recent law exempting sexual assault in medical settings from malpractice requirements — said there is some benefit for the person suing to get to see how a doctor plans to defend him or herself. But overall, the Republican lawmaker said, “it’s nothing more than an obstruction to a victim who has been hurt due to no fault of their own.”
Utah state Sen. Mike McKell, R-Spanish Fork, during a session of the Utah Senate on Feb. 24. McKell introduced legislation that will change state law to ensure that sexual assault lawsuits do not fall under the state’s Health Care Malpractice Act. (Leah Hogsten/The Salt Lake Tribune)“It’s an impediment put into place to create one more barrier for that access to the court,” he added.
McKell said he tries to help his clients understand that while panelists will likely find their claims don’t have merit, that doesn’t mean they have lost their case.
“This is not a fair hearing,” he said he tells his clients. “The cards are stacked against you. You will likely lose your case with the prelitigation panel. That doesn’t mean we don’t believe in your case.”
All panels include an attorney with no connection to the case, a member of the public who has applied to serve and a health care worker in the same specialty as the accused provider. But several attorneys said its members often defer to the opinion of the health care worker in the group who works in the same field as the accused.
In Utah’s small medical community, it’s likely that these people know each other or went to school together.
“You’re asking the profession to judge themselves,” said Ashton Hyde, the legislative chair of a lobbying organization for Utah trial lawyers. “I think the panel itself is a waste.”
Hall, the DOPL spokesperson, pushed back on concerns that the panels could be biased. She said that DOPL has observed that the medical professional on the panel generally holds the accused to a higher level of scrutiny than the other panelists.
“We believe this may reduce bias from the panel members,” she said.
Hyde said he fears if his organization pushes to get rid of the panels, there will be backlash from doctors and hospitals, who could counter by seeking legislative measures that would make the prelitigation process more difficult.
McKell said he contemplated introducing a bill to get rid of the prelitigation panels three years ago, after the Utah Supreme Court ruling limited their use. But he said he opted not to do so after receiving feedback from lawyers who thought the process still had value.
He has no plans to bring future legislation to eliminate the prelitigation panels, he said in a recent interview.
“This Is on My Soul”Lancaster said she left her prelitigation panel meeting hurt after one member asked her questions that she perceived as blaming her for being assaulted. She had trusted Martin for care for more than three years, she said, and when he allegedly assaulted her, it caused “a wound I can’t even explain.” (The finding from Lancaster’s panel hearing only became public because it was disclosed in a court filing that was later amended to remove it.)
Lancaster said she believes the panel should receive additional training to be more sensitive toward those who say they have been hurt.
“It was just a lack of education,” she said. “You don’t blame the victim for someone assaulting” them.
Hall, the spokesperson for DOPL, said that panel members do not currently receive sensitivity training, emphasizing that the division’s role in administering the panels is “clerical.” She said officials expect panel members to be professional and sensitive in their questioning, but said they also need a thorough understanding of the case.
“This may require very direct questions that seem insensitive,” she said.
Because McKell’s new reform exempting sexual assault survivors from medical malpractice requirements is not retroactive, alleged victims like Lancaster will continue to go before prelitigation panels for at least two more years — based on the filing deadlines for medical malpractice cases.
To Lancaster, sharing her story with the panel brought back the trauma she had experienced after the alleged assault.
“This is on my soul,” she said. “It’s on the depths of me that I will spend forever healing and trying to fathom why someone would do this to someone.”
If you need to report or discuss a sexual assault in Utah, you can call the Rape and Sexual Assault Crisis Line at 801-736-4356. Those who live outside of Utah can reach the National Sexual Assault Hotline at 800-656-4673.
Help ProPublica and The Salt Lake Tribune Investigate Sexual Assault in Utah
Mollie Simon contributed research.
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Late last month, Missouri’s House passed a budget that would strip all state funding for public libraries — $4.5 million in total. Republican lawmakers say they are doing this to retaliate against a lawsuit by Missouri librarians, who hope to see a new law against “explicit sexual material” in schools — in reality, a book […]
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This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans, and with Military Times, an independent news organization reporting on issues important to the U.S. military. Sign up for newsletters from The Texas Tribune and Military Times.
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.
A 1978 report to Congress called for the elimination of administrative discharges in lieu of court-martial. (Highlighted by ProPublica and The Texas Tribune)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.
Unheeded CallsSoldiers 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.
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 AnotherLate 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.
A military agent’s investigation report details allegations Faustino Vallo’s wife made that the soldier pointed a loaded gun at her. (Highlighted by ProPublica and The Texas Tribune)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.
A partial incident report from January 2020, released by the Killeen Police Department, shows Morgan Short’s family called 911 to report her allegation that Vallo was threatening her. (Highlighted by ProPublica and The Texas Tribune)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.
This military agent’s investigation report details allegations made by a soldier that a fellow service member, Tony Thomas, sexually assaulted her in her barracks room in March 2017. (Highlighted by ProPublica and The Texas Tribune)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 said he knew the woman was intoxicated and was unable to give consent, according to an investigator’s account of the interview. (Highlighted by ProPublica and The Texas Tribune)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.
Moving ForwardAfter 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 SeparationsIt’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-MartialTo 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.
Help ProPublica and The Texas Tribune Report on the Military Justice System
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