physically unfit to perform the duties of his office, rank, grade or rating, and is not entitled to retirement under the provisions of 10 U.S.C., Chapter 61.

(f) Personal abuse of drugs other than alcoholic beverages. Discharge with an Honorable discharge, when based on evidence developed as a direct or indirect result of a urinalysis test administered for identification of drug abusers, or by a member's volunteering for treatment for a drug problem under the Drug Identification and Treatment Program administered by his particular Armed Force, and:

(1) Member's record indicates lack of potential for continued military service;

or

(2) Long term rehabilitation is determined necessary and member is transferred to a Veterans' Administration or civilian medical facility for rehabilitation; or

(3) Member has failed, through inability or refusal, to participate in, cooperate in, or complete a drug abuse treatment and rehabilitation program. NOTE. It is essential to assure compliance with both the letter and spirit of the rule of law announced in "United States v. Ruiz" (23 USCMA 181, 48 CMR 797 (1974)). Extreme care should be exercised to assure that a member identified for separation under this provision is not separated with less than an honorable discharge, based on some separate and distinct reason for discharge, unless it can be clearly demonstrated that evidence of drug use obtained through the identification process described herein was not directly or indirectly utilized in establishing such separate and distinct reason. It may be desirable for field commanders to consult with legal personnel concerning implementation of this note.

(g) Unsuitability. Separation with an Honorable or a General discharge, as warranted by the member's military record, when it has been determined that an individual is unsuitable for further military service because of:

(1) Personality Disorder. As determined by medical authority and described in the Diagnostic and Statistical Manual (DSM-11) of Mental Disorders,1 American Psychiatric Association; which interferes with member's ability to adequately perform duties. Exception: Com

1 Section on mental disorders, International Classification of Diseases and Injuries-8, Diagnostic and Statistical Manual (DSM-11) of Mental Disorders, 2nd Edition, Committee on Nomenclature & Statistics, American Psychiatric Association, Washington, D.C., 1968.

bat exhaustion and other acute situational maladjustments.

(2) Alcohol Abuse. Failure, through inability or refusal, to participate in, cooperate in, or complete an alcohol abuse treatment and rehabilitation program.

(3) Homosexual or Other Aberrant Sexual Tendencies.

(4) Unsanitary Habits.

(5) Financial Irresponsibility.

(6) Apathy, Defective Attitudes, Inability to Expend Effort Constructively. As a significant observable defect elsewhere not readily describable.

(7) Inaptitude.

(h) Security. Separation, with the character of discharge, and under conditions and procedures, stipulated by the Secretary of Defense, as set forth in DoD Directive 5210.9' and similar Directives applicable to the Coast Guard, when retention is clearly inconsistent with the interest of national security.

(i) Misconduct. Separation with an Undesirable discharge, unless the particular circumstances in a given case warrant a General or an Honorable discharge, when it has been determined that an individual is unqualified for further military service because the member's military record in the current enlistment or period of obligated service evidences one or more of the following patterns of conduct, acts, or conditions:

(1) Frequent involvement of a discreditable nature with civil or military authorities.

(2) An established pattern for shirking. (3) An established pattern showing dishonorable failure to pay just debts.

(4) 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.

(5) Sexual perversion, including but not limited to (i) lewd and lascivious acts, (ii) homosexual acts, (iii) sodomy, (iv) indecent exposure, (v) indecent acts with or assault upon a child, or (vi) other indecent acts or offenses.

(6) Drug abuse, which is the illegal, wrongful, or improper use, possession, sale, transfer, or introduction on a military installation of any narcotic substance, intoxicating inhaled substance, marijuana, or controlled substance, as

2 Filed as part of original. Copies available from U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, Pa., 19120. Code: 300

established by 21 U.S.C. 812, when supported by evidence not attributed to a urinalysis administered for identification of drug abusers or to a member's volunteering for treatment under the Drug Identification and Treatment Program administered by his particular Armed Force.

(7) 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 for one year or more; 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 Courts-Martial, 1969 (Rev.) Table of Maximum Punishments or is not closely related to an offense listed therein, the maximum punishments authorized by U.S. Code or the District of Columbia Code, whichever is lesser, applies.

(8) Procurement of a fraudulent enlistment, induction or period of active service through any deliberate material misrepresentation, omission or concealment which, if known at the time, might have resulted in rejection. The enlistment of a minor with false representation as to age without proper consent will not in itself be considered as fraudulent enlistment.

(9) Prolonged unauthorized absence, continuous for 1 year or more.

(j) Resignation or request for discharge for the good of the service. Separation with an Undesirable discharge is authorized, subject to procedures and safeguards specified elsewhere in this part, upon resignation or request for discharge, where conduct has rendered a member triable by court-martial for an offense which is listed in section A. of the Table of Maximum Punishments, para. 127c, Manual for Courts-Martial, 1969 (Rev.) as being punishable by a punitive discharge (the provisions of the Table of Maximum Punishments, Section B., para. 127c, Manual for Courts-Martial, 1969 (Rev.) are not applicable to requests for discharge pursuant to this paragraph).

§ 41.8 Retention or separation.

In determining whether a member should retain current military status or be administratively separated, the mem

ber's entire military record may be evaluated.

(a) Include (1) records of nonjudicial punishment imposed during a prior enlistment or period of service, (2) all records of conviction by court-martial, and (3) any other factors which are material and relevant.

(b) Commanding Officers, investigating officers, administrative discharge boards, and other Agencies charged with making such determinations shall consider records of nonjudicial punishment imposed during a prior enlistment or period of service only if such records of punishments would have, under the particular circumstances of the case, a direct and strong probative value in determining whether retention or administrative separation is appropriate.

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

(d) 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.

§ 41.9

Characterization of service.

(a) Guidelines. When separated under the provisions of this Part, a member shall be provided a certificate reflecting the character of his service for the period concerned.

(1) Honorable. Predicated upon proper military behavior and proficient performance of duty with due consideration for the member's age, length of service, grade, and general aptitude. A member will not necessarily be denied an Honorable characterization solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice (10 U.S.C. 815) during his current enlistment or period of obligated service. An Honorable Discharge Certificate shall be provided upon discharge.

(2) Under honorable conditions. Appropriate when a member's military record is not sufficiently meritorius to warrant an Honorable characterization, as prescribed by the regulations of the Service concerned. A General Discharge Certificate shall be provided upon discharge.

(3) Under other than honorable conditions. Appropriate when a member is separated for (i) Misconduct or Security, when based on the approval of a recommendation of an administrative discharge board or waiver of the right to board action, or (ii) resignation or request for discharge for the Good of the Service. An Undesirable Discharge Certificate shall be provided upon discharge.

(b) Special consideration. (1) In any case in which an Undesirable discharge is authorized under this Part, a member may receive a more favorable characterization if, during his current enlistment or period of obligated service, or any voluntary or involuntary extension thereof, or period of prior service, he has been awarded a personal decoration as defined by his Service, or if warranted by the particular circumstances of a specific

case.

(2) Except as indicated below, the characterization of service of the 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 Armed Force concerned, or effected with the consent of the member. The following shall not be considered:

(i) Prior service activities, including but not limited to records of conviction by courts-martial, records of nonjudicial punishment, records of absence without leave, or commission of other offenses for which punishment was not imposed.

(ii) Preservice activities, excepting misrepresentations, including omission of facts which, if known, would have precluded, postponed or otherwise affected the member's eligibility for enlistment or induction.

§ 41.10

Restriction on certain administrative discharges.

(a) Administrative discharge action under the provisions of § 41.7(g) (2), (4), (5), (6), (7) and 41.7(i) (1) will not normally be initiated until a member has been counseled concerning his deficiencies and afforded a reasonable opportunity to overcome them.

(b) No member shall be discharged with an Undesirable Discharge Certificate unless he is afforded the right to present his case before an administrative discharge board, with the advice and assistance of counsel, and unless such discharge is supported by approved board

findings and an approved board recommendation for a discharge with an Undisirable Discharge Certificate. As exceptions, an Undesirable Discharge Certificate may be issued without board action if the member (1) is beyond military control by reason of prolonged unauthorized abesence, (2) resigns or requests discharge for the good of the Service, or (3) waives his right to board action.

(c) The Discharge Authority may approve the service characterization recommended by an administrative discharge board, or one more favorable, but shall not approve a characterization of service less favorable than that recommended.

(d) When an administrative discharge board recommends retention, and the Discharge Authority believes that separation is warranted, by the circumstances of a particular case, this Authority may recommend separation to the Secretary concerned, pursuant to § 41.7 (b) (13). If separation is approved, an Honorable or a General Discharge Certificate, as directed by the Secretary concerned, will be issued.

(e) Notwithstanding a member's written acknowledgment that he will be issued an Undesirable Discharge Certificate, under the provisions of § 41.7 (j), Resignation or Request for Discharge for the Good of the Service, the Discharge Authority may direct issuance of either an Honorable or General Discharge Certificate, if warranted.

(f) A member subject to discharge because of conviction by civil court may be processed for discharge although he has he has filed an appeal or stated his intention to do so. However, it will be general policy to withhold the execution of the approved discharge, pending outcome of the appeal. If the execution of the discharge is considered appropriate without waiting for final action on the appeal, the member may be discharged with the appropriate type of discharge certificate, upon the direction of the Secretary concerned.

(g) No member shall be administratively discharged with an Undesirable Discharge Certificate if the grounds for such discharge action was based wholly or in part upon acts or omissions for which the member has been previously tried by court-martial resulting in acquittal or action having the effect thereof, except when such acquittal or equivalent disposition is based on a legal technicality not going to the merits.

(h) No member shall be subjected to administrative discharge board action based upon conduct which has previously been the subject of administrative discharge board proceedings, when the evidence before the subsequent board would be the same as the evidence before the previous board, except as provided in § 41.5(d) (7), and in those cases where the favorable findings of the previous board are determined to have been obtained by fraud or collusion.

§ 41.11

Procedures for discharge.

The following procedures will be adhered to in effecting administrative discharges:

(a) Consultation with Counsel. Members being processed for involuntary separation with a General or Undesirable discharge shall be provided the opportunity to consult with a judge advocate or law specialist at the outset of the procedure for separation.

(b) Honorable Discharge. A separation with an Honorable discharge may be effected by the member's commanding officer or higher authority when the member is eligible for or subject to discharge and it has been determined that the member merits an Honorable discharge under prescribed Service standards.

(c) General Discharge. A separation with a General discharge may be effected by the commanding officer or higher authority when the member is eligible for or is subject to discharge and it has been determined, under prescribed Service standards that such discharge is warranted. When a General Discharge Certificate is issued for one of the reasons listed in § 41.7 (a) and (e) the specific basis therefor shall be included in the member's permanent personnel records.

(d) Discharge for Unsuitability. An Honorable discharge or a discharge Under Honorable Conditions (General discharge), based on the standards prescribed in § 41.7 (g) may be issued by the commander exercising special courtmartial jurisdiction or higher authority.

(1) A member with less than 8 years of total active military service shall be notified in writing of the proposed discharge action and shall be afforded an opportunity to make a statement in his own behalf or decline the opportunity in writing. This correspondence shall be filed in the member's permanent personnel records.

(2) A member with 8 or more years of total active military service shall be discharged by reason of unsuitability only in accordance with the safeguards and procedures specified in paragraph (e) (1) and (2) of this section.

(e) Undesirable discharge. An Undesirable discharge shall be directed by a commander exercising general courtmartial jurisdiction or by higher authority. This authority may be delegated to a general or flag officer in command who has a judge advocate or law specialist on his staff for cases arising in that command. Every action taken pursuant to such a delegation shall state the authority therefor. An Undesirable discharge shall be issued in accordance with the provisions of this Part which include the following procedures and safeguards:

(1) A member who is under military control shall be notified in writing of the basis for the proposed discharge action and advised that he has the following rights:

(i) To present his case before an administrative discharge board.

(ii) To be represented by counsel.

(iii) To waive the above rights in writing. The member shall be given an opportunity to consult with counsel, prior to waiving his rights.

(2) If a member waives his rights, the Discharge Authority may disapprove the waiver and refer the case to an administrative discharge board, or direct retention on active duty, or direct discharge by reason of misconduct or security. If discharge is directed, the type of certificate will be specified.

(3) A member unable to appear in person before an administrative discharge board, by reason of confinement by civil authorities, shall be advised (by registered mail or certified mail, return receipt requested) of the proposed discharge action, the type of discharge certificate that may be issued, and the fact that action has been suspended to give him the opportunity to exercise the following rights:

(i) To have his case considered by an adminstrative discharge board.

(ii) To request appointment of a military counsel to represent him and in his absence present his case before an administrative discharge board.

(iii) To submit statements in his own behalf.

(iv) To waive the foregoing rights, either in writing or by failing to reply to

the letter of notification within a prescribed time limit.

(4) A member of a Reserve component not on active duty shall be advised (by registered mail or certified mail, return receipt requested) of the proposed discharge action, the type of discharge certificate that may be issued, and the fact that action has been suspended to give him the opportunity to exercise the following rights:

(i) To have his case considered by an administrative discharge board.

(ii) To request appointment of a military counsel to represent him and in his absence present his case before an administrative discharge board.

(iii) To submit statements in his own behalf.

(iv) To waive the foregoing rights, either in writing or by failing to reply to the letter of notification within a prescribed time limit.

(5) A member beyond military control by reason of unauthorized absence:

(i) May be issued an Undesirable Discharge Certificate in absentia under either of the following circumstances:

(a) When the prosecution of the member is apparently barred by statute of limitations, 10 U.S.C. 843. In those cases, an Undesirable discharge may be issued at any time after it is determined that prosecution is so barred, provided that upon consideration of available extenuating, mitigating and aggrevating factors in each case, the Discharge Authority determines that the best interest of the Armed Forces will be served by issuance of the Undesirable discharge.

(b) When the Discharge Authority determines, in accordance with regulations of the Department concerned, that issuance of an Undesirable discharge will serve the national interests.

(ii) Shall be notified of the imminent discharge action and the effective date thereof by registered mail or certified mail, return receipt requested, forwarded to the record address of the member, or next of kin, as appropriate.

(iii) Shall be subject to the separation limitations of 10 U.S.C. 1163 if he is a member of a Reserve component.

(6) A member who submits a resignation or requests Discharge for the Good of the Service may be issued an Undesirable Discharge Certificate without board action, provided he had been afforded the opportunity to consult counsel and certifies in writing that he understands (i) he will receive an Undesirable Dis

charge Certificate and (ii) the adverse nature of such a characterization and the possible consequences thereof.

§ 41.12

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 shall 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 the military control for 15 or more days.