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(4) When the sole basis for separation is a lished by the Military Department (section

serious offense which resulted in a convic- P.). $ tion by a court-martial that did not impose (2) In time of mobilization or in other ap

a punitive discharge, the member's service propriate circumstances, the ASD (MRA&L) may not be characterized Under Other Than may authorize the Secretary concerned to Honorable Conditions unless such character- delegate the authority in subparagraph ization is approved by the Secretary con- (1)(b), above, (concerning the Honorable cerned.

characterization) to a general court-martial ង

(5) Conduct in the civilian community of a convening authority with respect to mem|

member of a reserve component who is not bers serving in operational units. on active duty or active duty for training

(3) With respect to administrative matters may form the basis for characterization

outside this part that require a characterizaUnder Other Than Honorable Conditions

tion as Honorable or General, an Entry Level only if such conduct affects directly the per

Separation shall be treated as the required formance of military duties. Such conduct

characterization. This provision does not may form the basis of characterization as

apply to administrative matters that ex} General (under honorable conditions) only if

pressly require different treatment of an such conduct has an adverse impact on the

Entry Level Separation except as provided in overall effectiveness of the service, including

subparagraph (4), below. military morale and efficiency.

(4) In accordance with 10 U.S.C. 1163, an (6) A member's voluntary submission to a

Entry Level Separation for a member of a DoD treatment and rehabilitation program (for personal use of drugs) and evidence pro

Reserve Component separated from the Devided voluntarily by the member concerning

layed Entry Program is “under honorable personal use of drugs as part of initial entry

conditions."

b. Void enlistments or inductions. A member into such a program may not be used against the member on the issue of characterization,

shall not receive a discharge, characterizaThis limitation does not preclude the follow

tion of service at separation, or an Entry ing actions:

Level Separation if the enlistment or induc(a) The introduction of evidence for im

tion is void except when a constructive enpeachment or rebuttal purposes in any pro

listment arises and such action is required ceeding in which the evidence of drug abuse

under subparagraph (3), below. If character(or lack thereof) has been first introduced by

ization or an Entry Level Separation is not the member; and

required, the separation shall be described as (b) Taking action based on independently

an order of release from custody or control derived evidence, including evidence of drug

of the Military Services. abuse after initial entry into the treatment

(1) An enlistment is void in the following and rehabilitation program.

circumstances: (7) The results of mandatory urinalysis

(a) If It was effected without the voluntary may be used on the issue of characterization

consent of a person who has the capacity to except as provided in the Deputy Secretary understand the significance of enlisting in of Defense Memorandum, "Alcohol and Drug

the Military Services, including enlistment Abuse," December 28, 1981, and rules promul

of a person who is intoxicated or insane at gated thereunder.

the time of enlistment. 10 U.S.C. 504; Article 3. Uncharacterized separations. ä. Entry

2(b), UCMJ. Level Separation. (1) A separation shall be de

(b) If the person is under 17 years of age. 10 scribed as an Entry Level Separation if sepa

U.S.C. 505. ration processing is initiated while a mem- (c) If the person is a deserter from another ber is in entry level status, except in the fol

Military Service. 10 U.S.C. 504. lowing circumstances:

(2) Although an enlistment may be void at (a) When characterization Under Other its inception, a constructive enlistment shall Than Honorable Conditions is authorized arise in the case of a person serving with a under the reason for separation (part 1) and Military Service who: is warranted by the circumstances of the (a) Submitted voluntarily to military aucase; or

thority; (b) The Secretary concerned, on a case-by- (b) Met the mental competency and minicase basis, determines that characterization mum 10 U.S.C. age qualifications of sections of service as Honorable is clearly warranted 504 and 505 of, at the time of voluntary subby the presence of unusual circumstances in- mission to military authority; volving personal conduct and performance of (c) Received military pay or allowances; military duty. This characterization is au- and thorized when the member is separated (d) Performed military duties. under part 1 by reason of selected changes in (3) If an enlistment that is void at its inservice obligation (section B.), Convenience ception is followed by a constructive enlistof the Government (section C.), Disability ment within the same term of service, char(section D.), Secretarial Plenary Authority acterization of service or description of sepa(secton o.), or an approved reason estab- ration shall be in accordance with subsection

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C.2. or paragraph C.3.a. of this part 2, as ap- to a reserve component, transfer from the propriate; however, if the enlistment was Selected Reserve to the IRR, release from void by reason of desertion from another custody or control of the Military Services, Military Service, the member shall be sepa- or other form of separation. rated by an order of release from the custody c. The least favorable characterization of and control of the Service regardless of any service or description of separation authorsubsequent constructive enlistment. The oc- ized for the proposed separation. currence of such a constructive enlistment

d. The right to obtain copies of documents does not preclude the Military Departments, that will be forwarded to the Separation Auin appropriate cases, from either retaining thority supporting the basis of the proposed the member or separating the member under separation. Classified documents may be section E. of part 1 on the basis of the cir

summarized. cumstances that occasioned the original void e. The respondent's right to submit stateenlistment or upon any other basis for sepa- ments. ration provided in this part.

f. The respondent's right to consult with c. Dropping from the rolls. A member may be

counsel qualified under Article 27(b)(1) of the dropped from the rolls of the Service when

UCMJ. Nonlawyer counsel may be appointed such action is authorized by the Military De

when the respondent is deployed aboard a partment concerned and a characterization

vessel or in similar circumstances of separaof service or other description of separation

tion from sufficient judge advocate resources is not authorized or warranted.

as determined under standards and procePART 3-PROCEDURES FOR SEPARATION dures specified by the Secretary concerned.

The respondent also may consult with civilA. Scope. 1. The supplementary procedures fan counsel retained at the member's own exin this part are applicable only when re

pense. quired under a specific reason for separation

g. If the respondent has 6 or more years of (part 1). These procedures are subject to the

total active and reserve military service, the requirements set forth in part 1 with respect

right to request an Administrative Board to specific reasons for separation.

(section C.). 2. When a member is processed on the basis

h. The right to waive paragraphs d., e., f. or of multiple reasons for separation, the fol

g., above, after being afforded a reasonable lowing guidelines apply to procedural re

opportunity to consult with counsel, and quirements (including procedural limitations

that failure to respond shall constitute & on characterization of service or description

waiver of the right. of separation):

2. Additional notice requirements. a. If sepaa. The requirements for each reason will be applied to the extent practicable.

ration processing is initiated on the basis of b. If a reason for separation set forth in the

more than one reason under part 1, the renotice of proposed action requires processing

quirements of paragraph B.1.a. apply to all under the Administrative Board Procedure

proposed reasons for separation. (section C., below), the entire matter shall be

b. If the respondent is in civil confinement, processed under section C.

absent without leave, or in a reserve compoc. If more than one reason for separation is

nent not on active duty or upon transfer to approved, the guidance on characterization

the IRR, the relevant notification procedures that provides the greatest latitude may be

in sections D., E., or F. of this part 3 apply. applied.

c. Additional notification requirements are d. When there is any other clear conflict

set forth in part 1, sections C. and D., when between a specific requirement applicable to

characterization of service as General (under one reason and a general requirement appli

honorable conditions) is authorized and the cable to another reason, the specific require

member is processed for separation by reason ment shall be applied.

of Convenience of the Government or Dise. If a conflict in procedures cannot be re- ability. solved on the basis of the foregoing prin- 3. Response. The respondent shall be prociples, the procedure most favorable to the vided a reasonable period of time, but not respondent shall be used.

less than 2 working days, to act on the noB. Notification Procedure. 1. Notice. If the tice. An extension may be granted upon a Notification Procedure is initiated under timely showing of good cause by the respondpart 1, the respondent shall be notified in ent. The decision of the respondent on each writing of the matter set forth in this sec- of the rights set forth in paragraphs 1.d. tion.

through g., above, and applicable provisions a. The basis of the proposed separation, in- referenced in subsection 2. shall be recorded cluding the circumstances upon which the and signed by the respondent and counsel, action is based and a reference to the appli- subject to the following limitation: cable provisions of the Military Depart- a. If notice by mail is authorized under secment's implementing regulation.

tions D., E., or F. of this part 3 and the reb. Whether the proposed separation could spondent fails to acknowledge receipt or subresult in discharge, release from active duty mit a timely reply, that fact shall constitute counsel; or (2) the Separation Authority asof the evidence, it may not be used as a basis

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a waiver of rights and an appropriate nota mination as to whether the respondent tion shall be recorded on a retained copy of should be retained in the Ready Reserve as a the appropriate form.

mobilization asset to fulfill the respondent's b. If the respondent declines to respond as total military obligation. This option applies to the selection of rights, such declination in cases involving separation from active shall constitute a waiver of rights and an ap- duty or from the Selected Reserve. Section propriate notation will be made on the form E. of this part 3 is applicable if such action provided for respondent's reply. If the re- is approved. spondent indicates that one or more of the C. Administrative Board Procedure. 1. Notice. rights will be exercised, but declines to sign If an Administrative Board is required, the the appropriate form, the selection of rights

respondent shall be notified in writing of the will be noted and an appropriate notation as

matters set forth in this section. to the failure to sign will be made.

a. The basis of the proposed separation, in4. Separation Authority. a. The Separation

cluding the circumstances upon which the Authority for actions initiated under the No

action is based and reference to the applicatification Procedure shall be a special court

ble provisions of the Military Department's martial convening authority or higher au

implementing regulation. thority. The Secretary concerned also may authorize a commanding officer in grade 0-5

b. Whether the proposed separation could

result in discharge, release from active duty or above with a judge advocate or legal advi

to a reserve component, transfer from the sor available to the command to act as a

Selected Reserve to the IRR, release from Separation Authority for a specified reason for separation, subject to approval by the

the custody or control of the Military ServASD(MRA&L). When the case has been initi

ices, or other form of separation. ated under the Administrative Board Proce

c. The least favorable characterization of dure and the member has waived the right to

service or description of separation authora hearing under section C.4., the Separation

ized for the proposed separation. Authority shall be an official designated

d. The respondent's right to consult with under subsection C.6., below.

counsel as prescribed in paragraph B.1.f. of b. The action of the Separation Authority

this part 3. However, nonlawyer counsel may shall be recorded.

not represent a respondent before an Adminc. The Separation Authority shall deter

istrative Board unless (1) the respondent exmine whether there is sufficient evidence to

pressly declines appointment of counsel verify the allegations set forth in the notifi

qualified under Article 27(b) (1) of the UCMJ cation of the basis for separation. If an alle

(10 U.S.C.) and requests a specific nonlawyer gation is not supported by a preponderance

signs nonlawyer counsel as assistant counfor separation.

sel. d. If there is a sufficient factual basis for

e. The right to obtain copies of documents separation, the Separation Authority shall

that will be forwarded to the Separation Audetermine whether separation is warranted

thority supporting the basis of the proposed under the guidance in sections A. and B. of

separation. Classified documents may be part 2. On the basis of that guidance, the

summarized. Separation Authority shall direct one of the

f. The respondent's right to request a hearfollowing actions:

ing before an Administrative Board. (1) Retention;

g. The respondent's right to present writ(2) Separation for a specific reason under

ten statements instead of board proceedings. part 1; or

h. The respondent's right to representation (3) Suspended separation in accordance at the Administrative Board either by millwith the guidance in section B. part 2.

tary counsel appointed by the Convening Aue. If the Separation Authority directs sepa- thority or by military counsel of the reration or suspended separation on the basis spondent's own choice (if counsel of choice is of more than one reason under part 1, the determined to be reasonably available under Separation Authority shall designate the regulations of the Secretary concerned) but most appropriate basis as the primary reason not both. for reporting purposes.

i. The right to representation at the Adf. If separation or a suspended separation is ministrative Board by civilian counsel at the directed, the Separation Authority shall as- respondent's own expense. sign a characterization or description in ac- j. The right to waive the rights in paracordance with section C. of part 2.

graphs d. through 1., above. 8. Except when characterization Under k. That failure to respond after being afOther Than Honorable Conditions is directed forded a reasonable opportunity to consult or the member is separated on the basis of with counsel constitutes a walver of the homosexuality or a void enlistment or induc- rights in paragraphs d. through i., above. tion, the Secretary concerned may authorize 1. Failure to appear without good cause at the Separation Authority or higher author- a hearing constitutes waiver of the right to ity to make a recommendation or deter- be present at the hearing.

2. Additional notice requirements. a. If separation processing is initiated on the basis of more than one reason under part 1, the requirements of paragraph C.1.a. apply to all proposed reasons for separation.

b. If the respondent is in civil confinement, absent without leave, or in a reserve component not on active duty or upon transfer to the IRR, the relevant notification procedures in sections D., E., or F. of this part 3 apply.

c. Additional notification requirements are set forth in sections C. and D., part 1, when characterization of service as General (under honorable conditions) is authorized and the member is processed for separation by reason of Convenience of the Government or Disability.

3. Response. The respondent shall be provided a reasonable period of time, but not less than 2 working days, to act on the notice. An extension may be granted upon a timely showing of good cause by the respondent. The decision of the respondent on each of the rights set forth in paragraphs 1.d. through 1.1., above, and applicable provisions referenced in subsection 2., above, shall be recorded and signed by the respondent and counsel, subject to the following limitations:

a. If notice by mail is authorized under sections D., E., or F. of this part 3 and the respondent fails to acknowledge receipt or submit a timely reply, that fact shall constitute a waiver of rights and an appropriate notation shall be recorded on a retained copy of the appropriate form.

b. If the respondent declines to respond as to the selection of rights, such declination shall constitute a waiver of rights and an appropriate notation will be made on the form provided for respondent's reply. If the respondent indicates that one or more of the rights will be exercised, but declines to sign the appropriate form, the selection of rights will be noted and an appropriate notation as to the failure to sign will be made.

4. Waiver. a. If the right to a hearing before an Administrative Board is waived, the case will be processed under subsection B.4. of this part 3 (Notification Procedure), but the Separation Authority in such cases shall be an official designated under subsection C.6.

b. When authorized by the Secretary concerned, a respondent entitled to an Administrative Board may exercise a conditional waiver after a reasonable opportunity to consult with counsel under paragraph C.1.d. A conditional waiver is a statement initiated by a respondent waiving the right to a board proceeding contingent upon receiving a characterization of service or description of separation higher than the least favorable characterization or description authorized for the basis of separation set forth in the notice to the respondent.

5. Hearing procedure. If a respondent requests a hearing before an Administrative

Board, the following procedures are applicable:

a. Composition. (1) The Convening Authority shall appoint to the Administrative Board at least three experienced commissioned, warrant, or noncommissioned officers. Enlisted personnel appointed to the Board shall be in grade E-7 or above, and shall be senior to the respondent. At least one member of the Board shall be serving in the grade of 04 or higher, and a majority shall be commissioned or warrant officers. The senior member shall be the president of the Board. The Convening Authority also may appoint to the Board a nonvoting recorder. A nonvoting legal advisor may be appointed to assist the Board if authorized by the Secretary concerned.

(2) If the respondent is an enlisted member of a reserve component or holds an appointment as a reserve commissioned or warrant officer, the Board shall include at least one Reserve officer as a voting member. Voting members shall be senior to the respondent's reserve grade. See 10 U.S.C. 266.

(3) The Convening Authority shall insure that the opportunity to serve on Administrative Boards is given to women and minorities. The mere appointment or failure to ap point a member of such a group to the Board, however, does not provide a basis for challenging the proceeding.

(4) The respondent may challenge a voting member of the Board or the legal advisor, if any, for cause only.

b. Presiding officer. The president shall preside and rule finally on all matters of procedure and evidence, but the rulings of the president may be overruled by a majority of the Board. If appointed, the legal advisor shall rule finally on all matters of evidence and challenges except challenges to himself.

c. Witnesses. (1) The respondent may request the attendance of witnesses in accordance with the implementing Instruction of the Military Department concerned.

(2) In accordance with such instructions, the respondent may submit a writton request for TDY or invitational travel orders for witnesses. Such a request shall contain the following matter:

(a) A synoposis of the testimony that the witness is expected to give.

(b) An explanation of the relevance of such testimony to the issues of separation or characterization.

(c) An explanation as to why written or recorded testimony would not be sufficient to provide for a fair determination.

(3) The Convening Authority may authorize expenditure of funds for production of witnesses only if the presiding officer (after consultation with a judge advocate) or the legal advisor (if appointed) determines that:

(a) The testimony of a witness is not comulative;

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(b) The personal appearance of the witness is essential to a fair determination on the issues of separation or characterization;

(c) Written or recorded testimony will not accomplish adequately the same objective;

(d) The need for live testimony is substantial, material, and necessary for a proper disposition of the case; and

(e) The significance of the personal appearance of the witness, when balanced against the practical difficulties in producing the witness, favors production of the witness. Factors to be considered in relation to the balancing test include, but are not limited to, the cost of producing the witness, the timing of the request for production of the witness, the potential delay in the proceeding that may be caused by producing the witness, or the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training.

(4) If the Convening Authority determines that the personal testimony of a witness is required, the hearing will be postponed or continued if necessary to permit the attendance of the witness.

(5) The hearing shall be continued or postponed to provide the respondent with a reasonable opportunity to obtain a written statement from the witness if a witness requested by the respondent is unavailable in the following circumstances:

(a) When the presiding officer determines that the personal testimony of the witness is not required;

(b) When the commanding officer of a milltary witness determines that military necessity precludes the witness' attendance at the hearing; or

(c) When a civilian witness declines to attend the hearing.

(6) Paragraph (5)(c), above, does not authorize a Federal employee to decline to appear as a witness if directed to do so in accordance with applicable procedures of the employing agency.

d. Record of proceedings. In cases where the Board recommends separation, the record of the proceedings shall be kept in summarized form unless a verbatim record is required by the Secretary concerned. In cases where the Board recommends retention, a record of the proceedings is optional unless required by the Secretary concerned. However, a summarized or verbatim record shall be prepared in any cases where the board recommends retention and the Separation Authority elects to forward the matter to the Secretary concerned under subparagraph C.6.d.(2)(6). The Board reporter shall retain all materials necessary to prepare a transcript should the Separation Authority elect to forward the case to the Secretary. In all cases, the findings and recommendations of the Board shall be in verbatim form.

e. Presentation of evidence. The rules of evidence for courts-martial and other judicial proceedings are not applicable before an Administrative Board. Reasonable restrictions shall be observed, however, concerning relevancy and competency of evidence.

f. Rights of the respondent. (1) The respondent may testify in his or her own behalf, subject to the provisions of Article 31(a), UCMJ (10 U.S.C.).

(2) At any time during the proceedings, the respondent or counsel may submit written or recorded matter for consideration by the Board.

(3) The respondent or counsel may call witnesses in his or her behalf.

(4) The respondent or counsel may question any witness who appears before the Board.

(6) The respondent or counsel may present argument prior to when the Board closes the case for deliberation on findings and recommendations.

g. Findings and recommendations. (1) The Board shall determine its findings and recommendations in closed session. Only voting members of the Board shall be present.

(2) The Board shall determine whether each allegation set forth in the notice of proposed separation is supported by a proponderance of the evidence.

(3) The Board shall then determine under the guidance in section A. of part 2 whether the findings warrant separation with respect to the reason for separation set forth in the Notice. If more than one reason was contained in the Notice, there shall be a separate determination for each reason.

(4) The Board shall make recommendations on the following:

(a) Retention of separation. The Board shall recommend retention or separation.

(b) Suspension of separation. If the Board recommends separation, it may recommend that the separation be suspended in accordance with section B. of part 2, but the recommendation of the Board as to suspension is not binding on the Separation Authority.

(c) Characterization of service or description of separation. If separation or suspended separation is recommended, the Board shall recommend a characterization of service or description of separation as authorized in part 1 (Reasons for Separation) in accordance with the guidance in section C. of part 2.

(d) Transfer to the Ready Reserve. Except when the Board has recommended separation on the basis of homosexuality or has recommended characterization of service Under Other Than Honorable Conditions, the Secretary Concerned may authorize the Board to make a recommendation as to whether the respondent should be retained in the Ready Reserve as a mobilization asset to fulfill the respondent's total military obligation. This option applies to cases involving

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