charge by reason of unsuitability for any of the specific bases prescribed in paragraphs (a) (1)-(6) of this section, such Discharge Authority will forward all papers, or copies thereof, pertaining to the case to the Commandant of the Marine Corps (Code DG) for filing in the official record of the member concerned. However, where the specific basis for the discharge is one of the reasons prescribed in paragraphs (a) (1)-(6) of this section, but there is evidence of homosexual or other aberrant sexual tendencies present in the case, the Discharge Authority, after completion of his final action thereon, will forward the case to the Commandant of the Marine Corps (Code DK) for review.

§ 730.66 Discharge for reason of unfitness. (a) Authorization. The Commandant of the Marine Corps, and all Marine commanders exercising general courtmartial jurisdiction, may authorize or direct the retention in the service or the discharge of members by reason of unfitness, except that cases involving sexual perversion as the specific basis for the proposed discharge will be referred to the Commandant of the Marine Corps (Code DK) for disposition. Where there is evidence of sexual perversion present in the case, but the local Discharge Authority determines that the specific basis for the proposed discharge should be one of the bases reflected in paragraphs (b)(2)(7) of this section, he may authorize or direct the member's discharge and is not required to forward the case to the Commandant except for review as required by § 730.54(h).

(b) Specific reasons. A commanding officer or officer in charge will recommend a member for discharge by reason of unfitness when he determines that the member's military record includes one or more of the following:

(1) Sexual perversion, including, but not limited to:

(i) Lewd and lascivious act(s).

(ii) Homosexual act(s). SECNAV Instruction 1900.9 series contains controlling policy and provides for additional action required in homosexual

cases.

(2) Frequent involvement of a discreditable nature with civil or military authorities. No specific number of acts or omissions are contemplated herein. Each case must be evaluated in light of its own particular facts to determine whether, because of such frequent involvement, the member concerned has clearly demonstrated that he is unqualified for retention and, if so, whether the character of his service has been other than honorable. (3) An established pattern of shirking.

(4) Drug addiction or habituation, or the unauthorized use or possession of narcotics, marijuana, hypnotics, sedatives, tranquilizers, depressant or stimulant drugs, hallucinogens, and other similar drugs, chemicals, or substances, considered to be habit forming, or to have a potential for abuse because of their depressant or stimulant effect on the central nervous system or because of their hallucinogenic effect. As an aid in determining what drugs, chemicals, or substances are included within the purview of this subparagraph, see Article 1270, U.S. Navy Regulations, 1948; Title 21, U.S. Code, Chapters 6 and 9; Public Law 89-74, July 15, 1965 (Drug Abuse Control Amendments of 1965); Title 21, CFR, Part 166, 31 FR 1071, 1074, 4679; and such other regulations dealing with these subjects as may from time to time be promulgated by the Secretary of Health, Education, and Welfare, and published in the FEDERAL REGISTER and the Code of Federal Regulations.

(5) An established pattern showing dishonorable failure to pay just debts. (6) An established pattern showing dishonorable failure to contribute adequate support to dependents, or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents.

(7) Unsanitary habits. This provision includes, but is not limited to, the oc

currence of repeated venereal disease infections during the member's current enlistment or period of service. When reporting repeated venereal disease infections, indicate the date of each admission and the specific nature of the infection. See Department of the Navy General Order No. 18, and SECNAV Instruction 6222.1 or revisions thereof.

(c) Counseling. Action with a view to discharging a member as unfit for any of the reasons set forth in paragraphs (b) (2), (3), (5), (6), and (7) of this section, will normally not be initiated unless the member has previously been afforded a reasonable opportunity to overcome his deficiencies. When it is determined that a member may come within the purview of these specific categories, the member shall be notified of his deficiencies and he shall be counseled concerning them. A brief summary of all counseling measures taken in compliance with this subparagraph shall be recorded on page 11 of the member's service record book. If no improvement is forthcoming within a reasonable time, the member should then be processed for the appropriate type of discharge. Failure on the part of a member to receive or understand the counseling prescribed herein may be considered by discharge boards and Discharge Authorities, along with all other factors in the case, in determining whether or not a discharge is appropriate, and, if so, the type and character of discharge to be awarded. However, in no event shall the failure of the member to receive or understand such counseling be considered a defense in an administrative discharge proceeding or a bar thereto.

(d) Investigation. Before recommending a member for discharge by reason of unfitness, the commanding officer or officer in charge shall investigate or cause each case to be investigated. The circumstances, facts, and offenses shall be substantiated by entries or documents from the member's service records, and/or other pertinent information, and the original or copies thereof shall be enclosed with the recommendation.

(e) Service record entry. At the time of submission of a recommendation

for discharge, an entry will be made on page 11 of the member's service record book showing this fact and the reasons therefor. If the recommendation for discharge is finally disapproved, an entry to this effect will likewise be recorded on page 11 of the member's service record book.

(f) Referral to board. Except as provided in §§ 730.54(c) and 730.74(b), all recommendations for a member's discharge by reason of unfitness will be referred to an administrative discharge board convened and conducted in accordance with § 730.73.

(g) Advice and according of rights. A member recommended for an undesirable discharge by reason of unfitness will be advised in accordance with § 730.72, and will be accorded those rights prescribed by §§ 730.54, 730.72, and 730.73. The nature of the advice given and the method by which it is transmitted to a respondent, and the nature of the rights to be accorded a respondent, will, under the applicable provisions of this subpart, depend upon whether or not the respondent is on active duty, whether or not the respondent is under military control, the extent to which a respondent effectively waives his rights, and whether or not the respondent requests discharge for the good of the service.

(h) Report of board and action thereon. Where an administrative discharge board is held, the report of the board will be submitted to the convening authority thereof in accordance with § 730.73. Upon receipt of the board's report, the convening authority will take the following action thereon:

(1) If the convening authority is not the appropriate Discharge Authority, he will forward the record of the case, including the report of the board and his recommendations thereon, to the Marine commander next in the chain of command exercising general courtmartial jurisdiction, or to the Commandant of the Marine Corps (Code DK), as appropriate, for disposition.

(2) If the convening authority is the appropriate Discharge Authority, he will take one of the actions permitted by § 730.73(i)(2).

(i) Action without board proceedings. Where no administrative discharge board is held because of the ap

plicability of any of the provisions of §§ 730.54(c) and 730.74(b), the authority empowered to convene an administrative discharge board, and to whom the case has been submitted, will take the following action thereon:

(1) If such authority is not the appropriate Discharge Authority, he will forward the entire record of the case, together with his recommendations thereon, to the appropriate Discharge Authority indicated in § 730.66(h)(1) for final disposition.

(2) If such authority is the appropriate Discharge Authority, he will take one of the following actions, regardless of the recommendations of the member's commanding officer or officer in charge (see § 730.51(r)):

(i) Direct the member's retention in the service.

(ii) Approve the member's discharge, specifying the type and bases thereof, but suspending the execution of the discharge for a specified period of probation in accordance with § 730.75.

(iii) Direct the member's discharge, specifying the type and bases thereof.

(j) Transfer. Members serving outside the continental United States shall be transferred to the nearest Marine Corps activity in the continental United States by the Marine commander exercising general court-martial jurisdiction who directs or recommends the discharge. Except where the Discharge Authority is the Commandant of the Marine Corps or the Secretary of the Navy, the authority for discharge will be included in the orders transferring the member to the continental United States. Commanders of activities outside the continental United States, not under the command of a Marine commander exercising general court-martial jurisdiction other than the Commandant of the Marine Corps, will transfer to the nearest Marine Corps activity in the continental United States those members who have been recommended for discharge by an administrative discharge board convened under the provisions of § 730.73, or those members who have been recommended for administrative discharge by their commanding officer or officer in charge and have waived, in writing, the right to have their case heard by an admin

istrative discharge board. Such commanders, in their endorsement of the proceedings of the board, or in the recommendation for the member's discharge, will indicate the activity in the continental United States to which the member is being transferred.

(k) Forwarding for review. When final action has been taken on any report or recommendation by a Discharge Authority other than the Secretary of the Navy or the Commandant of the Marine Corps, the Discharge Authority will forward all papers pertaining to the case to the Commandant of the Marine Corps (Code DK) for review. See § 730.54(h). (1) Action in cases of previous Background Investigation. For action to be taken before the execution of approved discharges authorized under the provisions of §§ 730.66 and 730.67, see § 730.51(p).

§ 730.67 Discharge by reason of misconduct.

(a) Authorization. The Commandant of the Marine Corps, and all Marine commanders exercising general courtmartial jurisdiction, may authorize or direct the retention in the service or the discharge of members by reason of misconduct, except that cases involving procurement of a fraudulent enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment of preservice homosexual act(s) or tendencies will be referred to the Commandant of the Marine Corps (Code DK) for disposition.

(b) Report. The commanding officer or officer in charge shall make a report of suspected or apparent misconduct by a member for any of the following reasons, and shall include in the report all relevant and material documentary evidence pertaining to the case, and his specific recommendation for discharge or for retention in the service of the member concerned:

(1) When a continuous unauthorized absence of more than 1 year has been established by official records, but the execution of a finally approved punitive discharge of the member has not been authorized by competent authority. See § 730.54(c)(1) where the

member is beyond military control. Where the member has returned or been returned to military control, see § 730.51(m)–(0), if applicable.

facts

(2) Procurement of a fraudulent enlistment, induction, or period of active service through any deliberate material misrepresentation, including the omission or concealment of which, if known at the time thereof, would have reasonably been expected to have precluded, postponed, or otherwise affected the member's eligibility for enlistment or induction. MCO P1100.61, Recruiting Service Manual, Part B, contains a pertinent provisions. The enlistment of a minor with false representation as to age, or without proper consent from his parents or legal guardians, will not, by itself, be considered as a fraudulent enlistment. See § 730.64(g). The procurement of a fraudulent enlistment, induction or period of active service may be based upon, but is not limited to, any deliberate material misrepresentation of or concerning the following:

(i) A police record, or conviction by civil court.

(ii) A record as a juvenile delinquent, wayward minor, or youthful offender. See, however, § 730.61(b)(3). Except as otherwise provided in § 730.61(b), and in addition to any other action required by the provisions of this subpart, in a case involving the procurement of a fraudulent enlistment, induction, or period of active service through a deliberate material misrepresentation of or concerning a record as a juvenile delinquent, wayward minor, or youthful offender, the following action will be taken:

(a) All the relevant facts pertaining to the case will be ascertained by establishing liaison with the civil authorities in order to determine the actual offense(s) committed by the member; all the circumstances in the case; and the final disposition by juvenile or youthful offender courts (when permitted by local law), including the actual period of confinement served, and whether civil probation exists.

(b) Any other information deemed relevant to an evaluation of the member's case will be obtained.

(c) An evaluation of: The facts obtained, the member's statement, the

character of the member's military service rendered, and the provisions of § 730.51(c), will be made to determine whether the member's discharge or retention should be directed.

(d) If discharge is deemed proper in these cases, it should normally be under honorable conditions, unless the particular circumstances of the case clearly warrant a less favorably type of discharge.

(iii) Previous service in any branch of the Armed Forces.

(iv) Physical defects.

(v) Marriage or dependents. See, however, § 730.61(b)(2).

(vi) Preservice homosexual act(s) or tendencies. SECNAV Instruction 1900.9 series contains controlling policy and provides for additional action required in homosexual cases.

(3) Conviction by civil authorities (foreign or domestic), or action taken which is tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year; or which involves moral turpitude; or where the offender is adjudged a juvenile delinquent, wayward minor, or youthful offender or is placed on probation or punished in any way as the result of an offense involving moral turpitude. If the offense is not listed in the Manual for Court-Martial Table of Maximum Punishments, or is not closely related to an offense listed therein, the maximum punishment authorized by the U.S. Code, or the District of Columbia Code, whichever is lesser, applies.

(i) A member subject to administrative separation pursuant to the provisions of paragraph (b)(3) of this section may be processed therefor notwithstanding the fact that he has filed an appeal or has stated his intention to do so. However, no approved administrative separation from the naval service, which is based solely or in part upon a conviction, or upon a juvenile, wayward minor, or youthful offender adjudication by civil authorities, will, during the period an appeal from such conviction or adjudication is actually pending, or is reasonably expected to be pending, be executed without the prior express approval and direction of

the Secretary of the Navy. Requests should not be made to the Secretary of the Navy for his approval and direction of the execution of an administrative discharge under these circumstances, except in those unusual cases where such action is essential in the interests of justice, discipline, and proper administration within the naval service. For example, such requests should be made to the Secretary of the Navy when the member's current period of obligated active or inactive service will expire before final action on the member's appeal can reasonably be expected, or in a case where it appears that the member's continued presence with the command is considered inimical to the health, morals, or welfare of the other members of the command.

(ii) In each case where a member is recommended for discharge by reason of misconduct because of the applicability of the provisions of paragraph (b)(3) of this section, the permanent record will contain, where available, a copy of the court order or order of commitment, or the certificate of the judge or the clerk of the court, advising as to the charge(s) of which the member was convicted, the sentence adjusted, and the disposition of the appeal, if any. Additionally, where available, a copy of the arresting officer's report and/or a copy of the presentence report of the probation officer, if any, will be included. Extreme care must be taken to insure that the the particular offense(s) of which member was convicted by civil authorities and the circumstances of their commission, are clearly and specifically identified and described so that the maximum permissible penalty therefor under the Uniform Code of Military Justice (10 U.S.C. 801-940), or the U.S. Code, or the District of Columbia Code, as applicable, can be ascertained. In making this determination, neither the name or label attached to an offense by civil authorities, nor the characterization of the nature of the crime (i.e. a crime involving moral turpitude, a felony or misdemeanor), by civil authorities is controlling.

(iii) As used in paragraph (b)(3) of this section, the term "convicted (or a conviction) by civil authorities" in

cludes not only final convictions by civilian courts of record, but all final determinations by civil authorities (including those made by a magistrate, a justice of the peace, a municipal court, or other inferior courts) or criminality on the part of a member, and those cases in which civil authorities have adjudged a member a juvenile delinquent, a youthful offender or a wayward minor. It is immaterial whether or not, as a result thereof, probation is imposed; and sentence is executed; execution of a sentence is deferred, delayed or suspended; or whether, by local law, custom or procedure, charges are dismissed or expunged from civil records after payment of a fine, completion of a term in jail or a penitentiary, or completion of a period of probation.

(iv) No member will be administratively discharged under conditions other than honorable if the grounds for such discharge are based wholly or in part upon acts or omissions for which the member has been previously tried in civil court resulting in acquittal or action having the effect thereof, except where such acquittal or equivalent disposition is based on a legal technicality not going to the merits. (See § 730.54(e)(2).)

(v) In cases involving the conviction of members by foreign civil authorities, see SECNAV Instruction 5820.4B, or revisions thereof, particularly Part IV, paragraph 5, on page 12 thereof, which prohibits the discharge of members confined in foreign prisons until the completion of their term of imprisonment and their return to the United States, except that in unusual cases such discharges may be executed upon the express authorization of the Secretary of the Navy. Despite the foregoing, such members may be processed for discharge, and their discharge approved, although not executed, at any time subsequent to their conviction.

(c) Applicable provisions. The instructions and procedures set forth in § 730.66(d)-(1) shall also govern the disposition of cases involving members considered for discharge by reason of misconduct.