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CHAPTER 4

DISCHARGES

A soldier who for mental or physical reasons cannot become adjusted to military service may be eliminated from it. Army regulations provide for the administrative discharge of an enlisted person for a variety of reasons before the expiration of his term of service. Among the category of persons who are eligible for administrative discharge are these:

a. Those who are guilty of misconduct which, under the circumstances does not warrant trial by court-martial, such as fraudulent entry into the Army or conviction by civil authorities.

b. Those who have habits or traits of character such as alcoholism, drug addiction or chronic misconduct which render their retention in the service undesirable; and those who are inept or unsuitable, mentally or physically, for further military service.

The various discharge procedures will be discussed below.

Elimination for Misconduct (Chapter 13, AR 635-200)—A person whose conduct shows that he is unwilling to be a satisfactory soldier, despite efforts at rehabilitation, may be discharged prior to his normal ETS by means of elimination for misconduct. Among specific reasons for this type of elimination are frequent acts of misconduct of a discreditable nature either in the military or the civilian community; drug abuse; repeated failure to support dependents adequately; and repeated dishonorable failure to pay valid debts. Normally, a soldier discharged for misconduct will be given an undesirable discharge certificate, but he may be given an honorable or general discharge certificate if there are particular circumstances which warrant less severe treatment.

Before initiating elimination procedures for misconduct, the unit commander must insure that attempts have been made to counsel and rehabilitate the soldier. This may include interviews with commander, chaplain or judge advocate, and a rehabilitative transfer to another unit, since often a change in supervisors, associates, or living or work areas will be instrumental in solving a soldier's problem. Only in cases where corrective attempts appear useless can counselling and rehabilitation measures be waived.

A soldier who has been recommended for elimination for misconduct has certain rights and options. He has the right to request personal appearance before a board of officers in order to contest this elimination. The procedure of these boards will be discussed later in this chapter. If he chooses not to appear before a board, he may still submit statements

in his own behalf. If he decides to appear before the board, he may be represented by an attorney, either appointed or of his own choice. He may also decide to waive all of these rights and allow the command to proceed with the discharge. In making his decision as to whether or not to waive these rights, the soldier will discuss his case with a judge advocate. If he decides to waive these rights, his decision must be in writing and must be signed by him and by a judge advocate.

Elimination for Unsuitability (Chapter 13, AR 635–200)—A person who shows that he is unable to be a satisfactory soldier for reasons other than misconduct may also be discharged prior to his normal ETS. This is done by means of a proceeding known as elimination for unsuitability. Specifically, a person may be eliminated for unsuitability due to inaptitude or inability to learn; personality disorders; apathy or inability to work; or chronic alcoholism. A soldier discharged for unsuitability will be given an honorable or general discharge certificate.

As with the discharge for misconduct the soldier has the right to contest the elimination by taking it before a board of officers. Or, he may waive his right to appear before that board. The procedures for waiving or availing himself of these rights are the same as with the discharge for misconduct.

Discharge for the Good of the Service (Chapter 10, AR 635–200)— Whenever court-martial charges have been preferred against a soldier, he may request a discharge "for the good of the service" if the offense charged is one with a maximum punishment including either a badconduct discharge or a dishonorable discharge. This type of discharge action differs from eliminations for misconduct or unsuitability in that it is initiated by the soldier himself rather than by his commander. No coercion may be applied in arriving at the decision. The commander does, however, make a recommendation as to whether the discharge should be approved or disapproved, and as to what type of discharge he feels would be appropriate.

Generally, persons separated under this chapter receive undesirable discharges, although in some cases general or honorable discharges are given.

Elimination for Conviction by Civilian Court (AR 635–206)—A soldier who has been initially convicted by a civilian court or adjudged a juvenile offender by a civilian court may be discharged prior to his normal ETS if the offense meets one of three criteria. These criteria are as follows:

The offense has a maximum penalty of death or confinement in excess of one year under the Uniform Code of Military Justice; or

the offense involves moral turpitude (limited by the regulation to narcotics violation or acts of sexual perversion); or—

the adjudication as a juvenile offender is for an offense of moral turpitude.

Once a commander has made a decision to recommend a soldier for

discharge, the soldier has the right to appear before a board of officers if he is not in civilian confinement, or if he is in confinement, to have his case considered by a board of officers. He has the same rights to counsel and rights to waive the board as with the misconduct discharge action.

In this case, as with unsuitability and misconduct, the soldier has no right to request that he be discharged. The general court-martial convening authority may decide not to eliminate the soldier if the offense is not too serious, the soldier has a good military record, and there are no restrictions placed on the soldier by civilian authorities which would interfere with his normal performance of military duties.

Discharge for Fraudulent Entry (Chapter 14, AR 635-200)—A soldier who has entered the Army by means of a fraudulent concealment of a material fact may be discharged prior to his normal ETS. The procedures are similar to those discussed above in cases of civil conviction and misconduct and include the right to a board of officers and representation by counsel when an undesirable discharge is being considered. "Material facts" which have been concealed to obtain enlistment and which may warrant discharge include (a) prior separation barring reenlistment; (b) conviction by civilian court; (c) citizenship status; (d) declaration as a juvenile offender; (e) medical defects; (f) AWOL or desertion from prior service. As with the other discharge actions, a general or honorable discharge certificate may be awarded in appropriate cases. In such cases, however, it is to be noted that the general court-martial convening authority may direct discharge without affording the respondent the opportunity to appear before a board of officers. In cases where it is alleged or shown that the fraudulent entry was aided by recruiter connivance, the enlistment will be voided and the individual separated from the service immediately.

Discharge for Personal Abuse, Alcohol, or Other Drugs (Chapter 16, AR 635-200)—A soldier who has a drug or alcohol problem which he has been unable to solve through the Army Alcohol and Drug Rehabilitation Program may be discharged. Discharge under this chapter is done without any board hearing at all. The soldier does have a right to submit statements in his own behalf following counseling by a judge advocate officer. No soldier may be discharged without being given a chance for rehabilitative treatment, and if such attempts at rehabilitation fail, he, or she may be discharged with an honorable discharge only.

Force Screening Discharge Programs (Chapter 5, AR 635-200)—In an effort to continue the development of a volunteer Army composed of truly dedicated and qualified personnel, the Army has instituted the Trainee Discharge Program and the Expeditious Discharge Program. Both programs aim at removing personnel with attitude, aptitude, or motivational problems and allow much faster processing than many of the other discharge actions as the servicemember does not have a right to a hearing before the board of officers.

The trainee Discharge Program affects individuals within their first

179 days active duty. If a soldier is discharged under this program he will receive an honorable discharge. However, since he has less than 180 days of active duty, he will not qualify for benefits from the Veterans' Administration.

The Expeditious Discharge Program may be used to discharge individuals between their sixth and thirty-sixth months of service. This program differs from most of the others discussed as it is voluntary. A soldier who is being considered for discharge may refuse action under this program and the unit commander must stop or find some other viable alternative. Personnel discharged under the Expeditious Discharge Program receive either honorable or general discharges.

Discharge for Hardship and Dependency (Chapter 6, AR 635200)—No matter how careful the screening process, soldiers will be taken into the Army who, because of a hardship or dependency situation at home, should be discharged and returned to civilian life before their ETS. These men are not attempting to shirk their military obligations, but have a conflict of demands which is best resolved by discharge. Usually, the soldier will approach his unit commander or first sergeant with his or her problem, and it is the unit commander who takes the first action in processing the discharge request.

Any circumstance of dependency or hardship sufficient to warrant a discharge must have arisen after the soldier has entered the Army or been made more serious by his absence in the service. The situation must be permanent in nature, i.e., more than an illness or temporary job lay-off.

"Dependency" is a condition caused by the death or disability of a member of the soldier's family who previously had supported those persons now dependent upon the soldier. Further, the death or disability of the family member must have placed the principal responsibility of support on the soldier. An example of dependency might be where a soldier's parents were killed in an automobile accident leaving younger children at home without guardians.

"Hardship" is a condition not involving the death or disability of a family member, but which is caused by a soldier's entry into the service or which arose after his entry into the service and which his return could alleviate. A change in income or inconvenience caused by military service is not sufficient to show hardship. An example of hardship might be where a soldier is the only son of a farmer in an area where farm help is not available or within the family's means. If the father is elderly and cannot by himself work the farm sufficiently to maintain his family with the son in the service, a discharge for hardship would be appropriate.

If the soldier believes that the only solution to his problem is to be released from the Army, he must submit a written application for discharge. Evidence of hardship or dependency must be attached, normally in affidavit form.

Discharge for Conscientious Objection (AR 600-43)—A soldier may

apply for discharge if he is opposed to all forms of war because of deeply held moral, ethical, or religious beliefs. An opposition which is based solely on policy, pragmatism or expediency is not sufficient. (Welsh v. United States, 398 U.S. 333 (1970); Gillette v. United States, 401 U.S. 437 (1971). In order to succeed in his request for a discharge, the soldier must show that his beliefs became fixed after he enlisted in the Army or after he received a notice of induction. The individual is required to submit an application containing certain information describing his beliefs. Additional documentation verifying or explaining his beliefs also may be forwarded. He will be interviewed by a chaplain and a psychiatrist. Following these procedures, he will then have the opportunity to appear before a hearing officer (who must be a captain or higher) who will make a recommendation on the request for discharge. The request is then forwarded to the general court-martial convening authority for review. If the general court-martial convening authority deems the request proper, he may approve the action and order the discharge. If he feels the request should be disapproved however, the general court-martial convening authority must forward the file to The Adjutant General for final action. During the time that the application is being processed, the soldier will be assigned duties providing the minimum practicable conflict with his asserted beliefs.

Discharge of Minors (Chapter 7, AR 635-200)—From time to time, young men and women below the legal age for military service enter into active duty. Depending upon the situation, the particular enlistment may be without legal affect (void) or may be made void (voidable). If the enlistment is void, the Army has no jurisdiction or right to exercise authority over the "soldier." If the enlistment is voidable, the Army may, in its discretion, discharge the soldier. The same rules apply to void and voidable inductions.

The enlistment of a person who is under 17 years of age is void. However, if an enlistee enlisted while under age, but has since reached the proper age of 17, then the enlistment is considered only voidable. In this situation the unit commander may recommend the retention of the enlistee. However, the enlistee's parents may request his or her discharge and such a request will be granted if made within 90 days of the enlistment.

Where a soldier who is under 18 years old has enlisted without parental consent, the enlistment is voidable. However, the enlistee will not be discharged unless the request for discharge is made by one or both the parents. Once the enlistee has reached the age of 18 the enlistment becomes completely valid. In addition, if the enlistee whose enlistment if voidable has committed a serious court-martial offense after reaching the age of 17 and before a request is made for discharge by the parents of the enlistee, the enlistee may be retained in the service in spite of the parental request for discharge.

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