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Members can be discharged for misconduct on the basis of:
minor disciplinary infractions,
a pattern of misconduct,
commission of a serious offense (including drug use), and
Seeking a misconduct discharge is an extreme measure for getting out of the military. 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.
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 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.
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.
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.
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.
Commission of a Serious Offense and Civilian Conviction
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.
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 guilt 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 officer’s nonjudicial 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 nonpunitive regulations or minor offenses under the UCMJ…[that result] in informal (reduced to writing) or formal counselings, letters of reprimand or Article 15 nonjudicial 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. Civilian Conviction
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 servicemember 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…
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:
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.
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.