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What you have to understand is that the military is not going to be bound by the decision of the state. The rule under AR 600-85 doesn't require that a person be charged by a state court or even by the Military Court. It simply requires an incident or facts that the commander believes constitutes an incident for separation purposes.

Now, all that said, it is very good evidence that this incident doesn't really qualify if the case is dismissed against you and the command can certainly take that into consideration. They just won't be bound by the state's determination.

If you have more than six years of service or if they seek an Other than honorable Discharge (if they try to separate you), you'd have the right to a board hearing where you can make this argument.

You're asking me to predict how your commander will behave. I simply can't do that.

I've told you what he can do, because that is a legal question, but there is absolutely no way that I can tell you, with any degree of realism, what a man I don't know will do in this situation.

I would advise any commander under me to not consider this an offense. This doesn't sound like the types of situations where the state dismissed a claim based on a plea bargain...where the facts support it being an incident, but the charges are just changed. Here, the facts sound like they clearly support a dismissal. But I've had my advice ignored more than I care to try and count.