Chapter 14 - Rules of a Misconduct Discharges!
Members can be discharged for misconduct on the basis of:
Unlike separations for unsatisfactory performance or other designated physical and mental conditions, a misconduct separation indicates that the member is at fault or to blame for his or her behavior. Because the military regards drug use as behavior for which the individual is culpable, it generally processes these cases for a discharge on the grounds of misconduct.
- minor disciplinary infractions,
- a pattern of misconduct,
- commission of a serious offense (including drug use), and
- civilian conviction.
This involuntary discharge will normally be characterized as Under Other Than Honorable Conditions. A General (or, very rarely, Honorable) characterization may be given where the misconduct is minor, there are strong mitigating circumstances, or (in all branches but the Navy) the member is allowed to make a “conditional waiver” of rights in exchange for a General characterization.
Members facing the prospect of a misconduct discharge will most often want to fight separation for misconduct in order to avoid characterization of Under Other Than Honorable Conditions. Members may be facing “dual processing” for misconduct and a more favorable discharge. Misconduct processing may also be initiated as improper punishment of members for asserting their rights.
Offenses resulting in a misconduct discharge are usually also punishable by court-martial. Rather than preferring charges against a member, commands may opt for the administrative procedure of misconduct separation, thus depriving members of the
judicial protections available in a court-martial setting. On the other hand, if a member is acquitted at court-martial, the command may sometimes still proceed with a misconduct discharge.
Each Service interprets the DoD guidelines for the four categories of misconduct offenses (defined in “Definition of Terms” opposite) and “drug abuse” in various levels of detail. The Army is the most general while the Navy and Air Force are more specific.
Additionally, different commands vary in their interpretation of the regulations. If a member has committed a series of minor infractions or a pattern of misconduct, the commander is not necessarily obligated to initiate discharge. Some commands will overlook conduct that others use as a basis for discharge.
If convicted by a civilian court, separation is not mandatory but retention will be considered “only in exceptionally meritorious cases when clearly in the best interest of the Army.” [Military personal are being discharge even with a CIB or Purple Heart... That should say something about them!]
- “Action will be taken to separate a soldier for misconduct when it is clearly
- established” that:
- “Despite attempts to rehabilitate or develop him or her as a satisfactory soldier,
- further effort is unlikely to succeed….”
- “Rehabilitation is impracticable or soldier is not amenable to rehabilitation….”
- An unfit medical condition “is not the direct or substantial contributing cause of his or her conduct.”
According to the Army, “Abuse of illegal drugs is serious misconduct.” Second-time offenders, and first-time offenders in pay grades E5-E9, must be processed for separation. For first-time offenders in pay grades E1-E4, the separation authority will decide whether to separate, based on recommendations from the immediate and intermediate commanders.
Pattern of Misconduct
A member may be separated for a pattern of misconduct when he or she has:
- “a series of at least two disciplinary infractions which have been adjudicated by at least one nonjudicial punishment (NJP);”
- “three or more unauthorized absences, each of which is more than 3 days, but less than 30 days in duration;”
- or “an established pattern of dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees or judgments of civil court concerning support of dependents….”
The member must have violated counseling prior to initiating processing.
An individual must be processed for separation when misconduct resulted in, or had the potential to result in, death or serious bodily injury. (The Navy cites examples such as homicide, arson, armed robbery, as well as spouse and child abuse.) Other examples of serious offenses include “sexual behavior that deviates from socially acceptable standards of morality and decency” and some types of sexual harassment.
Commission of a Serious Offense and Civilian Conviction
It is mandatory for a member to be processed for separation by reason of misconduct “due to drug abuse” if there is a military offense, civil conviction, or “action taken which is tantamount to a finding of quilt” for one of the following:
- “Drug Abuse: The illegal or wrongful use or possession of controlled substance(s).”
- “[Possession of] Drug Paraphernalia: All equipment, products and materials that are used, intended for use, or designed for use in injecting, ingesting, inhaling, or otherwise introducing into the human body controlled substances in violation of the law.”
- “Drug Trafficking: The sale, transfer or possession with intent to sell or transfer,controlled substance(s).”
Minor Disciplinary Infractions
In the Marine Corps, minor disciplinary infractions are considered a “documented series of at least three minor disciplinary infractions, during the current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, commanding officers non-judicial punishment.”
Pattern of Misconduct
A pattern of misconduct is a “pattern of more serious infractions” that includes “two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment.”
Commanders shall process Marines for illegal, wrongful or improper use, possession, sale, transfer, distribution or introduction on a military installation of any controlled substance, marijuana, or other dangerous or illicit drug or the possession, sale, or transfer of drug paraphernalia….
Airmen [sic]…are required to maintain, both on and off duty, the high standards of personal conduct set for Air Force members. They occupy a unique position in society, representing the military establishment 24 hours a day. This special status carries with it a permanent obligation to uphold and maintain the dignity and good reputation of the Air
Force at all times and in all places. Therefore, unacceptable conduct any time adversely affects military duty performance.
Minor Disciplinary Infractions
Minor disciplinary infractions may involve “failure to comply with non punitive regulations or minor offenses under the UCMJ…[that result] in informal (reduced to writing) or formal counseling, letters of reprimand or Article 15 non-judicial punishments.”
Pattern of Misconduct
The pattern may consist of:
- “Discreditable involvement with military or civil authorities.”
- “Conduct prejudicial to good order and discipline.”
- “Failure to support dependents.”
- “Dishonorable failure to pay just debts.”
The Air Force follows the DoD guidelines except for one curious quirk: the possibility of a “constructive waiver.” Air Force commanders are urged to act promptly in processing a separation based on a civilian conviction to avoid a constructive waiver. “Failure to exercise the option to discharge when the facts are known tends to show intent to retain the airman [sic].” However, the “mere passage of time, standing alone, is not sufficient for a constructive waiver.” The determination as to whether or not there is a constructive waiver is made by the commander having “express waiver authority.”
Commission of a Serious Offense
In addition to the DoD guidelines, the Air Force includes sexual perversion and unauthorized absence of one year or more as serious offenses. If a service member in the Air Force tests positive for HIV they may be discharged for misconduct if he or she is “found not to have complied with lawfully ordered preventive medicine procedures.” (While mentioned specifically in Air Force regulations, the above grounds would also be grounds for misconduct in all the Services.)
“Drug abuse is incompatible with military service and airmen [sic] who abuse drugs one or more times are subject to discharge for misconduct.” An Air Force member found to have used drugs will be discharged unless the member meets all seven of the following criteria:
- “Drug abuse is a departure from the member's usual and customary behavior.
- “Drug abuse occurred as the result of drug experimentation (a drug experimenter is defined as one who has illegally or improperly used a drug for reasons of curiosity, peer pressure, or other similar reasons).
- “Drug abuse does not involve recurring incidents, other than drug experimentation as >defined above.
- “The member does not desire to engage in or intend to engage in drug abuse in the future.
- “Drug abuse under all the circumstances is not likely to recur.
- “Under the particular circumstances of the case, the member's continued presence in the Air Force is consistent with the interest of the Air Force in maintaining proper discipline, good order, leadership, and morale….
- “Drug abuse did not involve drug distribution….”
Seeking a misconduct discharge is an extreme measure for getting out of the military. Usually, counseling a member facing a misconduct discharge involves fighting separation to obtain a different type of discharge, a more favorable characterization of service, or retention. Misconduct offenses may be the result of behavior caused by physical, emotional, or other problems. Screen members for other grounds for separation: hardship, dependency, parenthood, other designated physical and mental conditions, disability, or even unsatisfactory performance may be more appropriate.
Warn clients about the risks of an OTH characterization, including loss of veterans benefits and problems finding future civilian employment. Members also need to be disabused of the myths that an OTH characterization is automatically upgraded after discharge or that upgrades are easy to obtain.
A member facing a misconduct separation may be more concerned with how quickly they can be processed out than the characterization of service. If an OTH characterization seems inevitable, the counselor’s role can be to press the command to process the separation quickly.
See Chapter 13, Unsatisfactory Performance, or Chapter 12, Other Designated Physical
and Mental Conditions, for guidance on documenting how misconduct may be the result
of factors that could qualify for other discharges. For information on drug case
documentation, see “Fighting Separation” on page 14.8.
Approaching the Command
For information on alternate discharges see Chapter 2, Overview of Military Discharges.
Before discharge processing can begin, the command must follow the standard counseling procedure and provide an opportunity for rehabilitation to the member. (See Chapter 3, Understanding the Discharge Process, under “Official Process” on page 3.7.) However, this is not required for commission of a serious offense, civilian conviction, or drug abuse.
The command must follow the standard notification procedure to give notice of discharge proceedings to the member. (See Chapter 3, Understanding the Discharge Process, under “Notification” on page 3.7.) An administrative board hearing is available to a member with six years or more of military service or one who is being processed for a separation which may be characterized as Under Other Than Honorable Conditions (OTH). (See Chapter 3, Understanding the Discharge Process, under “Appeals” on page 3.9.)
Type of Separation
A misconduct separation will almost always be characterized Under Other Than Honorable Conditions (OTH). There are rare cases where the member’s service record is otherwise so excellent that the command will recommend a General (under Honorable
Conditions) or even Honorable characterization. A member in entry level status will be processed for an entry level performance and conduct discharge when processed for minor disciplinary infractions. Repercussions of an OTH characterization include loss of veterans benefits and possibly problems in obtaining a civilian job.
Urinalysis results may be used as evidence in disciplinary actions and in all adverse administrative actions, except if a member:
However, urinalysis results from the above circumstances may still be used as a basis for separation for drug abuse, although the characterization of service may not be Under Other Than Honorable Conditions.
- “Voluntarily submits” to a treatment and rehabilitation program before the “receipt of an order to appear for a lawful urinalysis;”
- Is tested as part of a “limited use safety mishap investigation;” or
- Is tested as part of a “command-directed” urinalysis. (See “Command-Directed Urinalysis” on page 14.3.)
Members whose discharge will be either General (under Honorable Conditions) or Honorable do not have the right to an administrative board hearing unless they have served six or more years. Where there is no right to a board, the member's opportunity to challenge the discharge is limited to discussion with the command or submitting written statements and evidence to the separation authority through the standard notification procedure. If an OTH is possible, or the service member has served six years or more, the member has a right to an administrative board hearing.
Strategy and tactics are different in every case, depending on the facts and the client's goals. In many cases, establishing the client's overall good character and good performance of duties is important. To make a strong showing of good character, the counselor and client should arrange to have as many people as possible in the chain of command to act as character witnesses or write character letters. Although civilian witnesses, including family members and clergy, are also helpful, the military tends to give more credence to its own. Senior enlisted personnel and officers who supervise the individual and who can make strong, positive statements on his or her behalf may sometimes be enough to convince an administrative board to recommend retention.
Documentation will need to prove that the member's misconduct was an unusual occurrence for this person and is unlikely to happen again. If problems which gave rise to the acts of indiscipline have been resolved, there is an argument for retention if the member shows potential for further useful military service.
In some cases, it may be possible to refute the specific allegations of misconduct through witness testimony, official records, or other evidence. This is made more difficult by the growing trend in Service regulations to regard nonjudicial punishment “convictions,”court-martial findings, and civilian court convictions as proof beyond a reasonable doubt that the misconduct occurred. Even in these cases, proof of innocence may have an impact on the board. Where innocence cannot be proven, mitigating circumstances may be shown through medical or lay witness evidence of medical, psychiatric, family, or
In cases where the member has experienced sexual harassment, racial harassment, or discrimination the military’s public promises to eradicate harassment and discrimination and protect victims does not always translate into sympathetic board members. Many tend to disbelieve complaints of racism or sexism, or to be overtly hostile to “troublemakers” who raise such complaints. In such cases, document as much evidence as possible of discriminatory treatment towards the client and, if possible, other individuals as well. It can be helpful to use the various complaint procedures for harassment and discrimination simultaneously with the discharge proceedings. (See Chapter 6, Grievances and Filing Complaints.)
Drugs and Urinalysis
Drug abuse charges are common and are often based upon a single incident. Urinalysis is the most common method for documenting drug charges. Involuntary urinalyses have been upheld by military courts as constitutional in much the same way as have blood alcohol tests. The military continues to exercise jurisdiction over almost all drug-related incidents which occur off-base, even during off-duty time. Even so, it may be possible to challenge the validity of the drug test, or to argue for retention under extenuating circumstances. The Services have developed a zealous attitude about drugs and these
cases are difficult when the allegations cannot be disproved.
Commanders can choose to discipline members for drug use and, absent a flat acquittal, this is very commonly followed by discharge proceedings. However, commands may dispense with nonjudicial punishment or court-martial and simply process the member for discharge.
Because it is extremely difficult to challenge allegations of drug abuse in situations involving nonjudicial punishment (for example, the military may refuse to cooperate in producing evidence regarding urinalysis testing), a court-martial may present greater opportunities for a fair hearing and presentation of evidence.
Occasionally pre-trial, pre-administrative board, or pre-non judicial punishment challenges to the evidence can convince the command to drop the charges. For purposes of undermining urinalysis testing as evidence, one can:
Review with the client the procedures that were used. Obtain all documents concerning the urinalysis test, including the order authorizing the test, the log entry made when the sample was obtained, the complete chain of custody documents (showing receipt by a testing laboratory and the condition in which the sample was received), the actual test results, and any message traffic between the testing lab and the command. These documents may reveal important errors, such as a period when the sample was left unprotected and might have been contaminated or switched, or such chaos when samples were taken that there would be no way to be sure the sample belonged to the client. The actual test results can be analyzed by a toxicologist for anomalies.
- Demand all documentation of the chain of custody and challenge the chain of custody for the evidence, or the procedures used to obtain and safeguard samples.
- If the test was part of a “random” test in the unit, challenge whether the order which authorized random urinalysis was actually aimed at certain individuals.
- Challenge the purity or source of the sampling, including demanding a retest of the urine sample.
Where the client is adamant that he or she did not use drugs, consider a retest. The military will normally retest samples, but the test results will be the same if the sample was contaminated or switched, or, in rare cases, when the test cannot show the difference between a controlled substance and another substance. The testing lab can be asked, through the command or the client’s military attorney, to send an “aliquot” (portion) of the sample to a civilian lab. Civilian labs can often run more sophisticated tests to determine what substances were involved, and in some cases can determine whether
another person's sample might have become mixed up with the client’s.
Good character evidence is important whether the client plans to deny use of drugs or admits and argues for retention. In the latter case, it is also important to gather evidence of any mitigating circumstances after a careful review of the Service's drug regulations. Creative defenses such as “someone put it in the punch at the party,” “my girlfriend wanted to get even with me so she spiked the spaghetti,” or “it must have been because of the vitamin supplements I take” seldom work without an independent witness.
In drug cases where the accused has been court-martialed and managed to get a suspension of a Bad Conduct Discharge (BCD), the command often will refer the case to an administrative board for processing of a misconduct separation. In such cases, argue that the board should defer to the judgment of the military judge who obviously suspended the BCD because of something redeemable in the member.