Regulations: AR 600-85, AR 635-200

Experience

Tells us that a highly deserving Soldier can continue their service. The chain of command can decide to do:

Nothing – highly unlikely unless there are special circumstances
Punish the Soldier under the procedures of an article 15.
Separate the Soldier from service.

The separation is at the commander’s discretion. The commander can examine numerous factors in deciding if the Soldier should be separated. AR 635-200 state a commander can consider:

(1) The seriousness of the events or conditions that form the basis for initiation of separation proceedings. Also consider the effect of the Soldier’s continued retention on military discipline, good order, and morale.

(2) The likelihood that the events or conditions that led to separation proceedings will continue or recur.

(3) The likelihood that the Soldier will be a disruptive or undesirable influence in present or future duty assignments.

(4) The Soldier’s ability to perform duties effectively now and in the future, including potential for advancement or leadership.

(5) The Soldier’s rehabilitative potential.

(6) The Soldier’s entire military record, including—

(a) Past contributions to the Army, assignments, awards and decorations, evaluation ratings, and letters of commendation.

(b) Memoranda of reprimand or admonition, counseling records, records of nonjudicial punishment, records of conviction by court-martial and records of involvement with civilian authorities.

(c) Any other matter deemed relevant by the board or the separation authority, including specialized training, duties, and experience of persons entrusted by this regulation with making recommendations or decisions on separation or retention.

(d) Adverse information from a prior enlistment or period of military service only when such information would have a direct and strong probative value in determining whether separation is appropriate.

Conclusion:

Your Soldier does have an opportunity to remain in service if the entire chain of command supports the Soldier and can prove the Soldier’s potential for retention and that this was an isolated incident that was out of character. The ultimate decision will be made by the separation authority.

Action to Consider:

Get powerful and factual statements concerning the Soldier’s level of performance and future potential from all members of the chain of command. Each statement should recommend retention. Describe in detail the Soldier’s performance and future potential and why this is an isolated incident.
Gather a list of all significant achievements and contributions and include them in the statement.
Include why you believe it is in the best interest of the Army to retain the Soldier.

Regulation Extracts

AR 600-85 Army Substance Program

3–3. Alcohol sanctions

a. Commanders will process all Soldiers for separation, in accordance with paragraph 10–6, who are involved in two serious incidents of alcohol-related misconduct in a 12-month period; any Soldier who is convicted of driving while intoxicated (DWI) or driving under the influence (DUI) two times during his or her career will be processed for separation.

b. Military personnel will not be impaired on duty; any violation of this provision provides a basis for disciplinary action under the UCMJ and a basis for administrative action, to include characterization of service at separation. Only results from evidentiary tests may be used in support of disciplinary or administrative actions. (Refer to AR 190–5 for guidance related to alcohol testing). Actions must be consistent with the Limited Use Policy addressed in chapter 10.

10–6. Separation actions – military personnel

… commanders will process for separation all Soldiers who are— (1) Involved in two serious incidents of alcohol-related misconduct within a 12-month period. A serious incident of alcohol-related misconduct is defined as any offense of a civil or military nature that is punishable under the UCMJ by confinement for a term exceeding 1 year.

(3) Identified as an illegal drug abuser by a verified test positive for unauthorized use of controlled drugs or illegal drug use. Tested positive for illegal drugs a second time during their career.

(4) Convicted of DWI or DUI a second time during their career.

b. For Regular Army and Active Guard Reserve (AGR) Soldiers who meet separation criteria in paragraph b, above, but for whom commanders support retention, the retention authority will be elevated to the first GO in the chain of command with a judge advocate or legal advisor before going to the General Court Martial convening authority available in accordance with the provisions below.

(1) NCOs (corporal and above) processed for separation as provided for in paragraph above, require a retention decision from the first GO in the chain of command. All separation decisions (including retention in the Army) for specialist and below will remain with existing separation authorities.

(2) All enlisted Soldiers processed for separation as a result of drug or alcohol misconduct as provided for in paragraphs above, require a retention decision from the first GO in the chain of command.

AR 635-200 Enlisted Separations

1–1. Purpose

c. Department of the Army separation policy is designed to strengthen the concept that military service is a calling

different from any civilian occupation.

(3) The Army makes a substantial investment in training, time, equipment, and related expenses when persons enter into military service. Separation prior to completion of an obligated period of service is wasteful because it results in loss of this investment and generates a requirement for increased accessions. Consequently, attrition is an issue of significant concern at all levels of responsibility within the Army.

(a) Diligent efforts will be made to identify Soldiers who exhibit a likelihood for early separation and to improve their chances for retention through counseling, retraining, and rehabilitation prior to initiation of separation proceedings

1–8. Suspension of favorable personnel action

When suspension of favorable personnel action, per Army Regulation (AR) 600–8–2, is initiated solely because a Soldier is being considered for separation under chapter 13 or 14and it is later determined that the Soldier will be processed for separation for medical reasons (see para 1–33), the Soldier’s immediate commander will expedite action to remove the suspension action. This will prevent delay in disposition of the case through medical channels.

1–18. Suspension of execution of approved separation

a. A highly deserving Soldier may be given a probation period to show successful rehabilitation before the Soldier’s enlistment or obligated service expires.

(1) The separation authority or higher authority may suspend (except fraudulent entry) execution of an approved separation for a period of full-time military duty not to exceed 12 months. (See chap 2.)

(2) When there are approved reasons for separation in addition to fraudulent entry, suspension may be authorized only when waiver of the fraudulent entry is obtained.

(a) During the period of suspension, the Soldier must show that he/she is able to behave properly under varying conditions.

(b) The Soldier can also show that he/she can perform assigned duties efficiently.

b. Upon satisfactory completion of the probation period, or earlier if rehabilitation has been achieved, the authority that suspended the separation will cancel execution of the approved separation. If the Soldier has been transferred to the command of another separation authority, the separation will be canceled by the new separation authority or higher authority.

c. If the Soldier engages in conduct similar to that for which separation was approved, but then was suspended, or otherwise fails to meet the appropriate standards of conduct and duty performance, the commander concerned, the convening authority, or the separation authority will take one of the following actions:

(1) Initiate punitive or new administrative action in spite of the suspension of execution of the approved discharge.

(2) Withhold action in the case of a Soldier who is absent without authority or in civilian confinement by delivery under Uniform Code of Military Justice (UCMJ), Article 14 (Absence Without Authority), or while in civilian confinement. The provisions of either (1), above, or (3), below, will be complied with when the Soldier returns to military control and before the period of probation expires.

(3) Advise the Soldier, in writing, that vacation of the suspension is being considered and the reasons that warrant such consideration.

(a) The Soldier will be given 3 duty days to consult with counsel and submit a written statement in his/her own behalf or decline to make any statement.

(b) The commander taking the action will consider any information the Soldier submits. If the Soldier identifies specific legal issues for consideration, the separation authority will have the matter reviewed by an officer of the Judge Advocate General’s Corps. The separation authority may—

1. Vacate suspension of the approved action and execute separation, or

2. Continue to suspend execution of the approved separation for the remainder of the probation period.

1–15. Guidance

A substantial investment is made in training persons enlisted or inducted into the Army; therefore, this general guidance will be considered when initiating separation action.

a. Unless separation is mandatory, the potential for rehabilitation and further useful military service will be considered by the separation authority; where applicable, the administrative separation board will also consider these factors. If separation is warranted despite the potential for rehabilitation, consider suspending the separation, if authorized.

b. Adequate counseling and rehabilitation measures will be taken before initiating separation action against a Soldier when the reason for separation so specifies. An alleged or established inadequacy in previous rehabilitation efforts does not provide a legal bar to separation.

c. When deciding retention or separation in a case, consider the following factors:

(2) The likelihood that the events or conditions that led to separation proceedings will continue or recur.

(3) The likelihood that the Soldier will be a disruptive or undesirable influence in present or future duty assignments.

(4) The Soldier’s ability to perform duties effectively now and in the future, including potential for advancement or leadership.

(5) The Soldier’s rehabilitative potential.

(6) The Soldier’s entire military record, including—

(a) Past contributions to the Army, assignments, awards and decorations, evaluation ratings, and letters of commendation.

(b) Memoranda of reprimand or admonition, counseling records, records of nonjudicial punishment, records of conviction by court-martial and records of involvement with civilian authorities.

1. This includes records of nonjudicial punishment and convictions by court-martial. Such information ordinarily will be used only in those cases involving conduct repeated over an extended period of time.

2. In unusual situations, conduct from a prior enlistment that does not constitute a pattern of conduct manifested over an extended period of time may be considered in determining whether retention or separation is warranted. For example, a single incident of misconduct occurring in the prior period of service that, by itself, would warrant separation may be considered if the officials in the Soldier’s chain of command neither knew, nor reasonably should have known of, at the time the Soldier re-enlisted.

3. Commanders who believe that a Soldier’s case represents an unusual situation within the meaning of this paragraph should request guidance from the Commanding General (AHRC–EPR–F), 200 Stovall Street, Alexandria, VA 22332–0478.

(e) Isolated incidents and events that are remote in time normally have little probative value in determining whether administrative separation should be affected.

d. Commanders will review all administrative separations involving known victims of sexual assault (see AR 600–20, chap 8) and any Soldier who answered “Yes” to either of the questions cited under either paragraph 2–2i or 2–4h. Unless otherwise directed, this review must consider the following:

(1) Whether the separation appears to be in retaliation for the Soldier filing an unrestricted report of sexual assault. If so, consult with the servicing office of the staff judge advocate or other legal office.

(2) Whether the separation involves a medical condition that is related to the sexual assault, to include Post Traumatic Stress Disorder (PTSD). If so, consult with the appropriate medical personnel.

(3) Whether the separation is in the best interest of the Army, the Soldier, or both. If not, consult with the servicing staff judge advocate.

(4) The status of the case against the alleged offender, and the effect of the Soldier’s (victim’s) separation on the disposition or prosecution of the case. If the case is still open, consult the servicing Criminal Investigation Division unit and staff judge advocate.

e. Each commander in the chain of command must include a statement on his/her endorsement certifying review in accordance with paragraph 1–15d of this recommendation. Commanders will ensure compliance with AR 340–21 and AR 25–55.

1–16. Counseling and rehabilitative requirements

a. General. Army leaders at all levels must be continually aware of their obligation to provide purpose, direction, and motivation to Soldiers. It is essential that Soldiers who falter, but have the potential to serve honorably and well, be given every opportunity to succeed. Effective leadership is particularly important in the case of Soldiers serving their initial enlistments. Except as otherwise indicated in this regulation, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and, therefore, should be separated. In this regard, commanders will ensure that adequate counseling and rehabilitative measures are taken before initiating separation proceedings for the following reasons:

(1) Involuntary separation due to parenthood. (See para 5–8.)

(2) Personality disorder. (See para 5–13.)

(3) Other designated physical or mental conditions. (See para 5–17)

(4) Entry-level performance and conduct. (See chap 11.)

(5) Unsatisfactory performance. (See chap 13.)

(6) Minor disciplinary infractions or a pattern of misconduct. (See para 14–12a and b.)

(7) Failure to meet body fat standards. (See chap 18.)

b. Counseling. When a Soldier’s conduct or performance becomes unacceptable, the commander will ensure that a responsible official formally notifies the Soldier of his/her deficiencies. At least one formal counseling session is required before separation proceedings may be initiated for one or more of the reasons specified in a, above. In addition, there must be evidence that the Soldier’s deficiencies continued after the initial formal counseling.

(1) The number and frequency of formal counseling sessions are discretionary. Such factors as the length of time since the prior counseling, the Soldier’s performance and conduct during the intervening period, and the commander’s assessment of the Soldier’s potential for becoming a fully satisfactory Soldier, must be considered in determining if further counseling is needed.

(2) Counseling will be comprehensive and in accordance with chapter 17 of this regulation and will include the reason(s) it is being administered, the date, the fact that separation proceedings may be initiated if the deficiencies continue, and other guidance as appropriate.

(3) Each counseling session must be recorded in writing. DA Form 4856 (General Counseling Form) will be used for this purpose.

(4) The Soldier’s counseling or personal records must reflect that he/she was formally counseled concerning his/her deficiencies and given a reasonable opportunity to overcome or correct them.

c. Rehabilitation. Except as provided in d, below, the following rehabilitative measures are required prior to initiating separation proceedings for entry-level performance and conduct (see chap 11), unsatisfactory performance (see chap 13), or minor disciplinary infractions/patterns of misconduct (see chap 14):

(1) Trainees. Soldiers undergoing initial entry or other training will be recycled (reassigned between training companies or, where this is not feasible, between training platoons) at least once.

(2) Other than trainees. Soldiers not in training status will be locally reassigned at least once, with a minimum of 3 months of duty in each unit. Reassignment should be between battalion-sized units or between brigade-sized or larger units when considered necessary by the local commander.

(3) Permanent change of station (PCS) transfer. PCS funds normally will not be used for rehabilitative transfers. However, in meritorious cases where it is determined that a Soldier with potential to be a distinct asset to the Army would benefit from a change in commanders, associates, and living or working conditions, the commander exercising general court-martial jurisdiction may authorize PCS transfer within the same command. As an alternative, a request for reassignment to another command may be submitted to Headquarters, Department of the Army (AHRC–EP–appropriate career branch), 2461 Eisenhower Avenue, Alexandria, VA 22332–0478.

d. Waivers.

(1) Waiver of the counseling requirement is not authorized.

(2) The rehabilitative transfer requirements in chapters 11, 13, and 14 may be waived by the separation authority

in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Such circumstances may include:

(a) Two consecutive failures of the Army physical fitness test.

(b) Pregnancy while in entry-level status.

(d) Active resistance of rehabilitative efforts.

(e) Soldiers assigned to small installations or at remote locations.

(f) Situations in which transfer to a different duty station would be detrimental to the Army or the Soldier (for example, indebtedness, participation in the Alcohol and Drug Abuse Prevention and Control Program, Mental Health Treatment Program, and so forth).

(3) Waiver of rehabilitative transfer may be granted at any time on or before the date the separation authority approves or disapproves the separation proceedings. Waiver authority may be withheld by a higher separation authority in a particular case, a class or category of cases, or all cases. Decision to withhold waiver authority will be announced in writing.

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