Military Justice 101 - Part III
Basis for Involuntary Separations. There are several reasons an individual can processed for involuntary separation. Below are the most common:
Parenthood. A member may be separated by reason of parenthood if as a result thereof it is determined that the member is unable satisfactorily to perform his or her duties or is unavailable for worldwide assignment or deployment. Separation processing may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records.
Physical or Mental Condition. Individuals may be involuntarily separated on the basis of designated physical or mental conditions, not amounting to Disability, that potentially interfere with assignment to or performance of duty. Such conditions may include but are not limited to chronic seasickness or airsickness, enuresis, and personality disorder. Separation processing may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. Separation on the basis of personality disorder is authorized only if a diagnosis by a psychiatrist or psychologist, completed in accordance with procedures established by the Military Department concerned, concludes that the disorder is so severe that the member's ability to function effectively in the military environment is significantly impaired. Personality disorders are described in the Diagnostic and Statistical Manual (DSM-III) of Mental Disorders (reference (m)). Separation for personality disorder is not appropriate when separation is warranted for other reasons. For example, if separation is warranted on the basis of unsatisfactory performance or misconduct, the member usually will not be separated under this section regardless of the existence of a personality disorder.
Disability. A member may be separated for disability under the provisions of 10 U.S.C., Chapter 6l (reference (n)). Disability separations usually result in an Honorable, or Entry Level Separation.
Minority Enlistment. If a member is under the age of 17, the enlistment of the member is void, and the member shall be separated. A member shall be separated under 10 U.S.C. 51170 (reference (o)) in the following circumstances except when the member is retained for the purpose of trial by court-martial:
- There is evidence satisfactory to the Secretary concerned that the member is under 18 years of age;
- The member enlisted without the written consent of the member's parent or guardian; and
- An application for the member's separation is submitted to the Secretary concerned by the parent or guardian within 90 days of the member's enlistment.
Minority Enlistment Discharges are normally characterized as Entry Level Separations.
Erroneous Enlistment. A member may be separated on the basis of an erroneous enlistment, induction, or extension of enlistment. An enlistment, induction, or extension of enlistment is erroneous in the following circumstances, if: (1) It would not have occurred had the relevant facts been known by the government or had appropriate directives been followed; (2) It was not the result of fraudulent conduct on the part of the member; and (3) The defect is unchanged in material respects.
Erroneous Enlistment. normally receive an Honorable Discharge, unless eligible for an Entry Level Separation (Less than 180 days of military service).
Fraudulent Entry Into the Military Service. A member may be separated on the basis of procurement of a fraudulent enlistment, induction, or period of military service through any deliberate material misrepresentation, omission, or concealment that, if known at the time of enlistment, induction, or entry onto a period of military service might have resulted in rejection. Characterization of service or description of separation is based upon the service record and severity of the fraudulent entry. If the fraud involves concealment of a prior separation in which service was not characterized as Honorable, characterization normally shall be Under Other Than Honorable Conditions.
Unsatisfactory Performance. A member may be separated when it is determined that the member is unqualified for further military service by reason of unsatisfactory performance. Separation processing may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. Counseling and rehabilitation requirements are of particular importance with respect to this reason for separation. Because military service is a calling different from any civilian occupation, a member should not be separated when unsatisfactory performance is the sole reason unless there have been efforts at rehabilitation under standards prescribed by the Secretary concerned. The service shall be characterized as Honorable or General (under honorable conditions).
Homosexual Conduct. Homosexual conduct is grounds for separation from the Military Services. Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts.
Generally, a member's sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described below.
A member shall be separated under this section if one or more of the following approved findings is made:
- The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, unless there are approved further findings that: (1) Such acts are a departure from the member's usual and customary behavior; (2) Such acts under all the circumstances are unlikely to recur; (3) Such acts were not accomplished by use of force, coercion, or intimidation; (4) Under the particular circumstances of the case, the member's continued presence in the Armed Forces is consistent with the interest of the Armed Forces in proper discipline, good order, and morale; and (5) The member does not have a propensity or intent to engage in homosexual acts.
- The member has made a statement that he or she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. A statement by a Service member that he or she is a homosexual or bisexual, or words to that effect, creates a rebuttal presumption that the Service member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The Service member shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence demonstrating that he or she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts.
- The member has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved).
Characterization of service or description of separation is based on the conduct and performance of the individual. When the sole basis for separation is homosexual conduct, a characterization Under Other Than Honorable Conditions may be issued only if there is a finding that during the current term of service the member attempted, solicited, or committed a homosexual act in the following circumstances:
- By using force, coercion, or intimidation;
- With a person under 16 years of age;
- With a subordinate in circumstances that violate customary military superior-subordinate relationships;
- Openly in public view;
- For compensation;
- Aboard a military vessel or aircraft; or
- In another location subject to military control under aggravating circumstances noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.
All Involuntary Discharge actions with Homosexual Conduct as the basis entitles the respondent to an Administrative Discharge Board, regardless of service characterization or time-in-service.