bers will be present. The proceedings of the board will be maintained as prescribed by the Secretary of the Military Department but as a minimum shall contain a verbatim record of the findings and recommendations. The board will recommend one of the following alternative dispositions:

(1) Retention, or

(2) Discharge for a specified reason and the appropriate type of discharge certificate, according to the provisions of this part and the applicable Service regulations.

(c) Rights of the respondent. Subject to the specifications prescribed herein, a respondent who has not waived a hearing before an administrative discharge board and whose case is presented to such a board has the following rights:

(1) He may appear in person, with or without counsel, or in his absence, be represented by counsel, at all open proceedings of an administrative discharge board. The respondent may have counsel of his own choice provided proper authority determines the counsel requested is reasonably available. He may employ civilian counsel at his Own expense.

(2) He may challenge any voting member of the board for cause only.

(3) He may request the appearance before the board of any witness whose testimony he believes to be pertinent to his case. He will specify in his request the type of information the witness can provide. The board will invite the witness to attend if it considers that the witness is reasonably available and that his testimony can add materially to the case. If a witness on active duty declines the invitation, the board may refer the matter to the convening authority for a decision or orders. However, witnesses not on active duty must appear voluntarily and at no expense to the Government.

(4) The respondent may at any time before the board convenes or during the proceedings submit any answer, deposition, sworn or unsworn statement, affidavit, certificate, or stipulation. This includes but is not limited to depositions of witnesses not deemed to be reasonably available or witnesses unwilling to appear voluntarily.

(5) He may or may not submit to examination by the board. The provisions of 10 U.S.C. 831 will apply.

(6) The respondent and his counsel may question any witness who appears before the board.

(7) Failure of the respondent to invoke any of these rights, after he has been apprised of same, cannot be considered as a bar to the board proceedings, findings and recommendation.

(d) Discharge Authority. Upon receipt of the record of board proceedings, the Discharge Authority may take one of the following final actions:

(1) Approve the board's recommendations and direct their execution.

(2) Approve the board's recommendation for discharge but change the type of discharge to a more creditable one, e.g., upgrade an Undesirable to a General or even an Honorable Discharge. He shall not downgrade the type of discharge from a better to a less creditable type.

(3) Approve the board's recommendation for discharge but change the basis therefor when the record indicates such action would be appropriate, except that he shall not designate unfitness or misconduct as the basis when the board has recommended discharge for unsuitability.

(4) Approve the discharge but suspend its execution for a specified period of probation.

(5) Disapprove the recommendation for discharge and retain the member in the service.

(6) Disapprove the recommendation for retention and direct discharge under honorable conditions with an Honorable or General Discharge certificate, warranted.

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(7) He may set aside the findings and recommendations and refer the case to a new board if he finds legal prejudice to the substantial rights of the respondent. No member of the new board shall have served on a prior board which considered the same matter. The record of the proceedings of the earlier board, minus the findings, recommendations, and prejudicial matter, may be furnished the successor board. The discharge authority may not approve findings or recommendations less favorable to the respondent than those rendered by the previous board. § 41.9

Suspension of execution of approved discharge.

The Discharge Authority or higher authority may, prior to the expiration of the member's enlistment or period of obligated service, suspend execution of an approved discharge for a specified period

if the circumstances in a case indicate a reasonable prospect for rehabilitation. During the period of suspension, the member will be afforded an opportunity to demonstrate that he is capable of behaving properly for an extended period under varying conditions and that he can perform assigned duties efficiently.

(a) Upon satisfactory completion of the probationary period, execution of the approved discharge will be cancelled automatically.

(b) Additional misconduct on the part of the member during the probationary period or actions which constitute substandard performance of duty or demonstrate characteristics of unsuitability may establish the basis for one of the following actions:

(1) Punitive or new administrative action may be initiated notwithstanding the suspension of execution of the approved discharge.

(2) Suspension of the approved discharge may be vacated, and the approved discharge executed, to include discharge in absentia when the member has been beyond military control for 15 or more days.

PART 42-USE OF RECORDS OF NONJUDICIAL PUNISHMENT

Sec.

42.1 Purpose.

42.2 Applicability.

42.3
42.4 Policy.

Definitions.

AUTHORITY: The provisions of this Part 42 issued under R.S. 161; 5 U.S.C. 22; 10 U.S.C. 1162, 3811-3820, 6291-6298, 8811-8820.

SOURCE: The provisions of this Part 42 appear at 28 F.R. 1796, Feb. 27, 1963, unless otherwise noted.

§ 42.1 Purpose.

This part prescribes uniform policies, in supplementation of part 41, governing the use of records of nonjudicial punishment administered under Article 15 of the Uniform Code of Military Justice (or comparable provisions of law superseded by the Act of 5 May 1950) in connection with the administrative separation of members of the armed forces of the United States.

§ 42.2 Applicability.

The provisions of this part apply to the Army, Navy, Air Force, Marine Corps, and, by agreement with the Secretary of the Treasury, to the Coast Guard, and to all Reserve components thereof.

§ 42.3 Definitions.

As used herein, the following definitions will apply:

Complete severance

(a) Discharge. from all military status.

(b) Release from active duty. Termination of active duty status and transfer or reversion to a Reserve component not on active duty.

(c) Separation. A general term which includes discharge or release from active duty.

(d) Administrative separation. Discharge or release from active duty upon expiration of appointment or enlistment, or prior to expiration of appointment or enlistment in the manner prescribed by the Secretary concerned or by law, but specifically excluding separation by sentence of a general or special courtmartial.

(e) Military record. Includes an individual's behavior while a member of a military establishment, including general comportment and performance of duty, and reflects the character of the service he has rendered while a member of an armed service.

(f) Prior enlistment or period of service. Service in any component of an armed force, including the Coast Guard, which culminated in the award of a separation certificate or report attesting to the type and character of service rendered during that period.

§ 42.4 Policy.

(a) Type of discharge certificate. The type and character of the certificate or report issued upon administrative separation from current enlistment or period of service will be determined solely by the member's military record during that enlistment or period of service, plus any extensions thereof prescribed by law or by the Secretary concerned, or effected with the consent of the member. Records of nonjudicial punishment imposed during a prior enlistment or period of service may not be considered.

(b) Retention or separation. (1) In determining whether a member should retain his current military status or be administratively separated, the member's entire military record, including records of nonjudicial punishment imposed during a prior enlistment or period of service and any other factors which are material and relevant, shall

be evaluated. However, Military Department instructions shall specify that commanding officers, investigating officers, duly constituted boards, and other agencies charged with making such determinations will consider records of nonjudicial punishment imposed during a prior enlistment or period of service only if such records of punishment would, under the particular circumstances of the case, have a direct and strong probative value in determining whether retention or administrative separation should be effected.

(i) Cases in which the circumstances may warrant use of such records shall ordinarily be limited to those involving patterns of conduct which would become manifest only over an extended period of time.

(ii) When a record of nonjudicial punishment imposed during a current enlistment or period of service is considered, isolated incidents and events which are remote in time, or have no probative value in determining whether retention or administrative separation should be effected, shall have minimal influence on the determination.

(2) If a determination is made that a member should be administratively separated, paragraph (a) of this section applies.

The purpose of this part is to revise Part 43, Title 32, and in furtherance of the President's Message of March 21, 1966, "Consumer Interests" (H.R. Doc. No. 413, 89th Cong.), to prescribe general Department of Defense policy regarding the solicitation and sale of goods, services, and commodities on military installations by dealers, tradesmen, and their agents, to safeguard and promote the welfare and interests of military personnel as consumers, and to set forth the conditions under which DoD may extend assistance in the collection of debts, wherever incurred, from members of the armed forces.

§ 43.2 Applicability and scope.

(a) This part is applicable to all components of the Department of Defense, to those desiring the privilege of conducting commercial transactions with military personnel on military installations (including controlled housing areas), and to those who seek assistance in the processing of debt complaints against military personnel, particularly those in which consumer credit has been extended.

(b) For additional provisions governing on-base solicitation for certain specialized types of commercial enterprises see the following DoD directives:

(1) Life insurance companies and their agents-DoD Directive 1344.1, "Solicitation of Life Insurance on Military Installations," March 3, 1964 (Part 276 of this chapter).

(2) Automobile insurance companies and their agents-DoD Directive 1344.6, "Motor Vehicle Liability Insurance," April 15, 1964 (Part 278 of this chapter).

(3) Credit unions-DOD Directive 1000.9, "Credit Unions Serving DoD Personnel," August 27, 1965 (Part 230 of this chapter), and DoD Directive 1000.10, "Credit Unions Serving DoD Personnel on Overseas U.S. Military Installations," March 3, 1966.

(4) Commercial facilities authorized by the Army, Navy, Air Force, or Marine Corps Exchanges-DoD Directive 1330.9, "Armed Services Exchange Regulations," January 6, 1956.

As used herein, credit unions refer to those authorized by Part 230 of this chapter, and DoD Directive 1000.10, "Credit Unions Serving DoD Personnel on Overseas U.S. Military Installations," March 3, 1966.

(c) The provisions of this part relating to processing of debt complaints involving consumer credit transactions do not apply to companies furnishing utility services, milk, laundry, and related delivery services in which credit is extended solely to facilitate the service, as distinguished from inducing the purchase of the product of service. For additional exceptions see § 43.10(e). § 43.3 Commercial activities conducted on military installations.

(a) The solicitation and transaction of commercial business on military installations with members of the armed forces may be permitted at the discretion of the military commander, provided such solicitations and transactions conform to applicable regulations and do not otherwise interfere with essential military activities. No person has authority to enter upon and transact commercial business as a matter of right.

(b) Because of his broad responsibilities to maintain discipline, protect property, and safeguard the health, morale, and welfare of his personnel, the installation commander may impose reasonable restrictions on the character and conduct of commercial activities. Of special concern is the need to assure that members of the armed forces are not subject to fraudulent, usurious, or unethical business practices, and that reasonable and consistent standards are applied to each company and its agents in conducting commercial transactions on the installation. The word "company" as used herein, includes any commercial organization, company, group, or other type of legal entity.

(c) Those seeking to transact personal commercial transactions on military installations in the United States, its territories and the Commonwealth of Puerto Rico will be required, upon demand, to present to the installation commander or his designee documentary evidence that the company and its agents meet the licensing requirements of the state in which the installation is located, and that they also meet any other applicable regulatory requirements imposed by civil authorities (Federal, State, county, or municipality). For ease of administration, the installation commander may issue temporary permits to agents who meet these requirements and who frequently conduct commercial activities on the military installations. Permanent

installation passes will not be issued for this purpose.

(d) Those seeking to transact personal commercial transactions in foreign countries will be required to observe the applicable laws of the Host Country and upon demand to present documentary evidence to the installation commander or his designee that the company and its agents meet the licensing requirements of the Host Country. If the company and its agents also conduct business in the United States, they must also present upon demand, documentary eviIdence that they meet the licensing requirements of the State in which they conduct their principal business.

(e) Armed Services Exchange facilities will be approved as authorized by DoD Directive 1330.9, "Armed Services Exchange Regulations," January 6, 1956. No other exclusive franchise or concession will be awarded for on-base solicitation and sale of goods, services, and commodities to military personnel without the approval of the Assistant Secretary of Defense (Manpower). All existing exclusive franchises or concessions of this nature will be referred to the ASD(M) for review. This limitation will not apply to service and supply contracts related to base operations.

§ 43.4 Supervision of on-base commercial activities.

(a) The solicitation of military personnel and their dependents will be conducted on an individual basis, preferably by appointment, in such locations, and at such hours as the military commander may designate.

(b) A conspicuous notice of installation regulations will be posted in such form and such place as to give notice thereof to all those conducting on-base commercial activities. In so far as practicable as determined by the military commander, those conducting on-base commercial activities will be presented with a copy of the applicable installation regulations and advised that disregard of the regulations will result in the withdrawal of solicitation privileges.

(c) The following solicitation practices are prohibited:

(1) Solicitation of recruits, trainees, "mass" or "captive" audiences, and transient personnel.

(2) Solicitation in areas utilized for processing or housing transient personnel; solicitation in barracks occupied as quarters; or the making of appointments

with or soliciting military persons in an "on-duty" status.

(3) The use of official identification cards by retired or reserve members of the armed forces to gain access to military installations for the purpose of soliciting.

(4) Procuring, or attempting to procure, or supplying roster listings of DoD personnel for solicitation purposes.

(5) The offering of unfair, improper, and deceptive inducements to purchase or deal.

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(6) Practices involving rebates facilitate transactions or to eliminate competition. (Credit union interest refunds to borrowers are not considered a prohibited rebate.)

(7) The use of any manipulative, deceptive, or fraudulent device, scheme or artifice, including misleading advertising and sales literature.

(8) Any oral or written representations which suggests or give rise to the appearance that the DoD sponsors or endorses the company, its agents, or the goods, services, and commodities it sells. § 43.5 Denial and revocation of onbase solicitation.

(a) In furtherance of a commander's responsibilities, he shall deny or revoke permission to a company and its agents to conduct commercial activities on the military base if such action would further the best interests of the command. The grounds for taking this action shall include, but not be limited to, the following:

(1) Failure to meet the licensing and other regulatory requirements prescribed by § 43.3 (c) or (d).

(2) Commission of any of the solicitation practices prohibited by § 43.4(c).

(3) Substantiated adverse complaints or reports regarding the quality of the goods, services, or commodities solicited, the manner in which they are offered for sale, and the method and terms of financing.

(4) Personal misconduct by a company's agents or representatives while on the military installation.

(5) The possession of or any attempts to obtain allotment forms.

(b) The decision as to whether the denial or revocation action shall be limited to the agent, or whether it shall also be extended to the company he represents, shall be dependent upon the circumstances of the particular case, including among others, the nature of the

violations, their frequency, the extent to which other agents of the company have engaged in such practices, and any other matters tending to show the company's culpability.

(c) Upon denying or revoking solicitation privileges the agent and the company he represents will be promptly notified of the reasons, orally or in writing. If the grounds for the action bear significantly on the eligibility of the agent and the company to hold a State license or to meet other regulatory requirements, the appropriate authorities will be notified. If the grounds for the action are such that the denial or revocation action should be extended to additional military installations, the installation commander will make his recommendations to the military department concerned after affording the company the opportunity to show cause why it should not be so extended. If so approved, and when appropriate, the order may be extended to the other military departments by the Assistant Secretary of Defense (Manpower), following consultation with the military departments concerned. § 43.6 Educational programs and advertising policies.

(a) The military departments shall maintain information and education programs for the purpose of providing members of the armed forces with information pertaining to the conduct of their personal commercial affairs (consumer credit and financing, insurance, government benefits, savings, and budgeting). The services of commercial agents, including loan or finance companies and their associations may not be used for this purpose. The services of representatives of credit unions, including associations of credit unions, may be used for this purpose provided their programs are entirely educational in nature. Educational materials prepared by outside organizations expert in this field may be adapted or used provided such material is entirely educational in nature and does not contain or refer to any particular commercial product, service, or company. In addition, such experts in the field of personal commercial affairs may provide expert advice to those conducting such educational programs, but may not take parts in orientation lectures or individual counseling.

(b) The local military commander will also make qualified personnel and facilities available for individual counseling