Comments: To view or download the complete regulation, click on the link to it in the box above these comments.

ENCLOSURE 3

11. MISCONDUCT

a. Basis. A Service member may be separated for misconduct when it is determined under the guidance set forth in paragraph 1 of Enclosure 4 that the Service member is unqualified for further military service by reason of one or more of the following circumstances:

(1) Minor Disciplinary Infractions. A pattern of misconduct consisting solely of minor disciplinary infractions. If separation of a Service member in entry-level status is warranted solely by reason of minor disciplinary infractions, the action should be processed under entry-level performance and conduct (paragraph 6 of this enclosure).

(2) A Pattern of Misconduct. A pattern of misconduct consisting of:

(a) Discreditable involvement with civil or military authorities; or

(b) Conduct prejudicial to good order and discipline.

(3) Commission of a Serious Offense. Commission of a serious military or civilian offense if a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial (Reference (o)).

(4) Civilian Conviction

(a) Conviction by civilian authorities or action taken that is tantamount to a finding of guilty, including similar adjudications in juvenile proceedings and if the following conditions are present:

1. A punitive discharge would be authorized for the same or a closely related offense un der Reference (o); or

2. The sentence by civilian authorities includes confinement for 6 months or more without regard to suspension or probation.

(b) Separation processing may be initiated whether or not a Service member has filed an appeal of a civilian conviction or has stated an intention to do so. Execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed, but the Service member may be separated before final action on the appeal upon request of the Service member or upon direction of the Secretary concerned.

b. Counseling and Rehabilitation. Separation processing for minor disciplinary infractions or a pattern of misconduct (subparagraphs 11.a.(2)(a) and 11.a.(2)(b) of this enclosure) may not be initiated until the Service member has been formally counseled concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. If the sole basis of separation is commission of a serious offense (subparagraph 11.a.(3) of this enclosure), or a civilian conviction (subparagraph 11.a.(4)(a) of this enclosure), the counseling and rehabilitation requirements are not applicable.

c. Characterization or Description. Characterization of service shall normally be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under the guidelines in paragraph 3 of Enclosure 4. For respondents who have completed entry-level status, characterization of service as honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization clearly would be inappropriate. In such cases, separations for misconduct with an honorable characterization shall be approved by a commander exercising general court-martial jurisdiction or higher authority as specified by the Secretary concerned.

Comments: To view or download the complete regulation, click on the link to it in the box above these comments.

3.3. Circumstances for Urinalysis Testing

3.3.1. Inspection. During an inspection or examination of all or part of a unit conducted in accordance with the Military Rule of Evidence 313, MCM, 1984, reference (i).

3.3.2. Probable Cause. During a probable cause search or seizure when there is reasonable belief that the urine to be collected contains evidence of illegal drug use, in accordance with the Military Rule of Evidence 315 of reference (i).

3.3.3. Consent. When provided voluntarily by a Service member as part of a consent search conducted, in accordance with the Military Rule of Evidence 314(e) of reference (i).

3.3.4. Rehabilitation. During a Service member's participation in a drug treatment and rehabilitation program, as prescribed by the Military Department concerned.

3.3.5. Safety Mishap. Following any incident that may be considered a safety mishap under the regulations of the Service involved, a specimen may be collected from any individual directly or indirectly involved. Samples so collected may be used for any lawful purpose, including but not limited to: use consistent with the Military Rules of Evidence, disciplinary action under the UCMJ (reference (g)), or inclusion as independently collected evidence in a safety mishap investigation or other investigations. Specimens subsequently collected as part of a mishap investigation, formally convened in accordance with Service regulations, will be collected, tested, and reported out in a manner consistent with DoD Instruction 6055.7 (reference (j)) and applicable Service instructions. The results of the testing of those specimens may be protected and of limited use as determined by applicable Service regulations.

3.3.6. Command-Directed. During a command-directed examination of a Service member to determine the Service member's competence for duty or the need for counseling, rehabilitation, or other medical treatment when the commander has reason to question the Service member's competence for duty (i.e., aberrant, bizarre, or uncharacteristic behavior; unauthorized absences; violations of safety regulations; breaches of discipline; or other similar behavior).

3.3.7. Medical. During any examination for a valid medical purpose, such as emergency treatment, periodic physical examinations, and such other medical examinations as are necessary for diagnostic or treatment purposes in accordance with Military Rule of Evidence 312, reference (i).
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3.4. Use of Urinalysis Results

3.4.1. Urinalysis results may be used as evidence in disciplinary actions under the UCMJ (reference (g)) and in all adverse administrative actions (including separation from the Military Service), except in the following circumstances when:

3.4.1.1. A Service member voluntarily submits to a DoD treatment and rehabilitation program (before the receipt of an order to appear for a lawful urinalysis) or the urinalysis is administered as an integral part of the rehabilitation program. This limitation does not apply to, or prohibit the use of, the urinalysis results:

3.4.1.1.1. As required for national security, such as suspension and processing for removal of access to classified information; retention in a sensitive position; or

3.4.1.1.2. If the Service member is considered a rehabilitation failure of that program, except that tests conducted as an integral part of the rehabilitation program will continue to be protected by limited use; or

3.4.1.1.3. If the information substantiates continued drug abuse after initial entry into the treatment or rehabilitation program, except that tests conducted as an integral part of the rehabilitation program will continue to be protected by limited use; or

3.4.1.1.4. The outcome of the positive result is a non-punitive or administrative action, including separation for drug abuse. Any separation based on such records may not be under other than honorable conditions.

3.4.1.2. A Service member is tested for possible drug use as part of a limited use safety mishap investigation undertaken for accident analysis and the development of countermeasures. Testing procedures and requirements prescribed by DoD Instruction 6055.7 (reference (j)) shall apply. Results may be used in administrative actions, including separation, but not in an action under the UCMJ (reference (g)) or be considered in the issue of characterization of Service in a separation proceeding.