Part 280

Use of the Military Postal Service.

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41.8

Procedures for discharge.

AUTHORITY: The provisions of this Part 41 issued under sec. 161 of the Revised Statutes (5 U.S.C. 22); 10 U.S.C. 1162, 3811-3820, 62916298, 8811-8820.

SOURCE: The provisions of this Part 41 appear at 25 F.R. 14346, Dec. 31, 1960. § 41.1 Purpose and cancellations.

This part revises the standards and procedures governing the administrative discharge of enlisted persons from the Armed Forces. Former Part 44 (13 F.R. 5879) and any other existing regulations in conflict with the provisions of this part are superseded and cancelled ninety days after date of issue of this part.

§ 41.2 Applicability.

The policies and regulations set forth herein are applicable to the Army, the Navy, the Air Force, the Marine Corps, and by agreement with the Secretary of the Treasury, to the Coast Guard, and to all Reserve components thereof.

havior" as used herein refers to the conduct of the individual while a member of an Armed Service.

(b) Military record. "Military record" as used herein includes an individual's military behavior and performance of duty, and reflects the character of the service he has rendered while a member of an Armed Service.

(c) Honorable Discharge. An "Honorable Discharge” is a separation from an Armed Service with honor.

(d) General Discharge. A "General Discharge" is a separation from an Armed Service under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an Honorable Discharge.

§ 41.5 Pre-service activities.

Except for misrepresentations (including omissions) made in connection with his enlistment or induction, activities that a member of the Armed Forces engaged in before he acquired status in

the Armed Forces may not be considered in determining the type and character of discharge or separation to be issued. The type and character of the discharge will be determined solely by the member's military record.

§ 41.6 Standards for discharge.

The type and character of discharge or separation and the reasons therefor I will be determined in accordance with the following standards:

(a) Honorable Discharge. Issuance of an Honorable Discharge is conditioned upon:

(1) Proper military behavior: Ordinarily, an Honorable Discharge will not be issued if an individual has been convicted of an offense by General CourtMartial or has been convicted by more than one Special Court-Martial in the current enlistment, period of obligated service, or any extensions thereof.

(2) Proficient and industrious performance of duty having due regard to the rate, rank or grade held and the capabilities of the individual concerned.

(3) Eligibility for discharge by virtue of one of the following reasons:

(i) Expiration of enlistment or fulfillment of service obligation, as applicable.

(ii) Convenience of the Government.
(iii) Hardship or dependency.
(iv) Minority.

(v) Disability.

(vi) Unsuitability. (vii) Security.

(viii) When directed by the Secretary of the Department concerned.

(ix) Resignation-own convenience. Special considerations: An individual may, where otherwise ineligible, receive an Honorable Discharge if he has, during his current enlistment, period of obligated service, or any extensions thereof, received a personal decoration as defined by the respective services, or is discharged as a result of a disability incurred in line of duty. In each of the above situations, the individual's military record should form the basis for the action taken.

(b) General Discharge. Issuance of a General Discharge is conditioned upon:

(1) Military record not sufficiently meritorious to warrant an Honorable Discharge.

(2) Eligibility for discharge by virtue of one of the reasons listed in paragraph (a) (3) of this section.

(c) Undesirable Discharge. An Undesirable Discharge is an administrative separation from the service "Under Conditions Other than Honorable." It is issued for unfitness, misconduct or for security reasons. It will not be issued in lieu of trial by court-martial except upon the determination by an officer exercising General Court-Martial jurisdiction or by higher authority that the interests of the service as well as the individual will best be served by administrative discharge.

Special considerations: Notwithstanding the foregoing, whenver the particular circumstances in a given case so warrant, an administrative discharge other than an Undesirable Discharge may be issued. § 41.7 Reasons for discharge.

(a) Expiration of enlistment or fulfillment of service obligation (as applicable). Discharge with an Honorable or a General Discharge as warranted by the individual's military record (§ 41.6 (a) or (b), as applicable).

(b) Convenience of the Government. Discharge with an Honorable or a General Discharge as warranted by the individual's military record, for the following reasons:

(1) General demobilization, reduction in authorized strength or by an order applicable to all members of a class of personnel specified in the order.

(2) Acceptance of a commission or appointment in any branch of the Armed Services, for active duty only.

(3) National health, safety or interest. (4) To permit immediate enlistment or reenlistment.

(5) Erroneous induction or enlistment.

(6) To provide for the discharge of individuals serving in unspecified enlistment.

(7) In the case of women, marriage, pregnancy, parenthood, or custody of children under age 18.

(d) Dependency or hardship. (1) Discharge or separation or release by reason of dependency or hardship with an Honorable or a General Discharge, as warranted by the individual's military record. Discharge may be directed when it is considered that undue and genuine dependency or hardship exists, that the hardship or dependency is not of a temporary nature, and that conditions have arisen or been aggravated to an excessive degree since entry into the Service and the member has made every reasonable effort by means of application for Family Allowance and voluntary contributions which have proven inadequate; that the discharge of the individual will result in the elimination of, or will materially alleviate the condition and that there are no means of alleviation readily available other than by such discharge.

(2) Undue hardship does not necessarily exist solely because of altered present or expected income or because the individual is separated from his family or must suffer the inconveniences normally incident to military service.

(e) Minority. Discharge by reason of minority with an Honorable or General Discharge as warranted by the individual's military record, or release by voidance of enlistment upon determination that the individual's age was misrepresented upon enlistment or induction as follows:

(1) Males, if enlisted and under 17 years of age, or inducted and under 18 years and six months of age, when verified, release from military control by discharge, release or voidance of enlistment.

(2) If an enlisted man, enlisted without proper consent and having passed his 17th birthday, but not his 18th birthday, discharge upon application of parent or legal guardian as prescribed by law.

(3) If an enlisted man having passed his 18th birthday when verified-retain if otherwise qualified.

(4) Females, if enlisted and under 18 years of age, or inducted and under the age prescribed by law for such induction, release from military control by discharge, release or voidance of enlistment.

(5) If an enlisted woman enlisted without proper consent, having passed her 18th birthday, but not her 21st birthday, when verified-discharge upon ap

plication of parent or legal guardian as prescribed by law.

NOTE: The enlistment of a minor with false representation as to age without proper consent will not in itself be considered as fraudulent enlistment.

(f) Disability. Discharge by reason of physical disability, with an Honorable or General Discharge as warranted by the individual's military record, when it has been determined as a result of medical findings that the individual is physically unfit to perform the duties of his office, rank, grade or rating.

(g) Unsuitability. Discharge by reason of unsuitability, with an Honorable or General Discharge as warranted by the individual's military record. Such discharge will be effected when it has been determined that an individual is unsuitable for further military service because of:

(1) Inaptitude: Applicable to those persons who are best described as inapt, due to lack of general adaptability, want or readiness of skill, unhandiness, or inability to learn.

(2) Character and behavior disorders: Character and behavior disorders, disorders of intelligence, and transient personality disorders due to acute or special stress as defined in "Joint Armed Forces Nomenclature and Method of Recording Psychiatric Conditions-1949" (SR 401025-2; NavMed P-1303; AFR 160-13A).

(3) Apathy, defective attitudes and inability to expend effort constructively: As significant observable defect, apparently beyond the control of the individual, elsewhere not readily describable. (4) Enuresis.

(5) Alcoholism: Chronic, or addiction to alcohol.

(6) Homosexual tendencies.

(7) Special considerations: For other good and sufficient reasons when determined by the Secretary of the Department concerned.

(h) Security. Discharge with the character of discharge and under conditions stipulated by the Secretary of Defense in directives which deal explicitly with this matter when retention is not clearly consistent with the interest of national security.

(i) Unfitness. Discharge by reason of unfitness, with an Undesirable Discharge, unless the particular circumstances in a given case warrant a general or honorable discharge, when it has

been determined that an individual's military record is characterized by one or more of the following:

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

(2) 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.

(3) Drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana.

(4) An established pattern for shirking.

(5) An established pattern showing dishonorable failure to pay just debts. (6) For other good and sufficient reasons when determined by the Secretary concerned.

(j) Misconduct. Discharge by reason of misconduct, with an Undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge, when one or more of the following conditions have been determined:

(1) 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 UCMJ is death or confinement in excess of one year; or which involves moral turpitude; or where the offender is adjudged a juvenile delinquent, wayward minor, or youthful offender as a result of an If offense involving moral turpitude. the offense is not listed in the MCM Table of Maximum Punishments or is not closely related to an offense listed therein, the maximum punishments authorized by the U.S. Code or the District of Columbia Code, whichever is lesser, applies. For the purpose of this subparagraph only, an individual shall be considered as having been convicted even though an appeal is pending or is subsequently filed.

(2) Procurement of a fraudulent enlistment, induction or period of obligated service through any deliberate material misrepresentation or concealment which, except for such misrepresentation or concealment, may have resulted in rejection.

(3) Prolonged unauthorized absence: When unauthorized continuous absence of one year or more has been established

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but punitive discharge has not been authorized by competent authority.

§ 41.8 Procedures for discharge.

In accordance with the standards outlined in this part, the following procedures will be adhered to in effecting administrative discharges: A separa

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

(b) General Discharge. A separation with a General Discharge may be effected by the individual's commanding officer or higher authority when the individual is eligible for or is subject to discharge and it has been determined under the prescribed standards and in accordance with any prescribed administrative procedures that a General Discharge is warranted.

An

(c) Discharge for unsuitability. individual recommended for an honorable or general discharge for reason of unsuitability shall be afforded the opportunity to make a statement in his own behalf.

(d) Undesirable Discharge. An Undesirable Discharge will be effected only by authority of a properly approved administrative action conforming to the prescribed standards, during which the safeguards following procedures and have been observed:

(1) The individual if subject to such discharge will, if his whereabouts is known, be properly advised of the basis for the contemplated action and afforded an opportunity to request or waive, in writing, the following privileges:

(i) To have his case heard by a Board of not less than three officers. In the case of non-regular component members, all boards so convened shall include appropriate numbers from the Reserve components. In the case of female members, all boards so convened shall include at least one female officer.

(ii) To appear in person before such board, subject to his availability, e.g., not in civil confinement.

(iii) To be represented by counsel, who, if reasonably available, should be a lawyer.

(iv) To submit statements in his own behalf.

(2) Separation with an Undesirable Discharge may be effected by an officer exercising general court-martial jurisdiction or by higher authority (including departmental headquarters) after review of the findings and recommendations made by any board which was convened to consider the case.

(3) Except for Reservists, Departmental Secretaries are authorized to waive the requirements set forth in subparagraph (1) of this paragraph (except subdivision (iv)), when such action is deemed in the best interest of the military service. Departmental Secretaries will advise the Assistant Secretary of Defense (Manpower, Personnel and Reserve) by memorandum not later than 15 July each year of any such actions taken during the preceding fiscal year, and the reasons therefor. The reporting requirement of this paragraph has been assigned Report Control Symbol DD-MP&R (A) 370.

PART 42-USE OF RECORDS OF NONJUDICIAL PUNISHMENT

Sec.

42.1 Purpose.

42.2 Applicability. 42.3 Definitions. 42.4 Policy.

AUTHORITY: The provisions of this Part 42 issued under sec. 161 of the Revised Statutes (5 U.S.C. 22); 10 U.S.C. 1162, 3811-3820, 62916298, 8811-8820.

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

§ 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.

(a) Discharge. Complete severance 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 de