Chapter 13 - Separation For Unfitness Or Unsuitability

[carlie]

Hope this helps a vet.

carlie

http://dont.stanford.edu/regulations/regulation27.pdf

23 November 1972 C 39, AR 635-200

CHAPTER 13

SEPARATION FOR UNFITNESS OR UNSUITABILITY

Section I. General

13-1. Purpose. This chapter establishes policy and

provides procedures and guidance for eliminating

enlisted personnel who are found to be unfit or

unsuitable for further military service.

13-2. Policy. a. Action will be taken to separate

an individual for unfitness when it is clearly established

that-

(1) Despite attempts to rehabilitate or develop

him as a satisfactory soldier, further effort

is unlikely to succeed ; or

(2) Rehabilitation is impracticable or he is

not amenable to rehabilitation measures (as indicated

by the medical and/or personal history

record) ; or

(3) An unfit medical condition (AR 40-501)

is not the direct or substantial contributing cause

of his unfitness (para 13-11 b ).

b. Action will be taken to separate an individual

for unsuitability when it is clearly established

that-

(1) It is unlikely that he will develop sufficiently

to participate in further military training

and/or become a satisfactory soldier, and

(2) He meets retention medical standards

(AR 40-501) (para 13-11 a ).

c. Action will be taken only when an individual

is under military control, except that an individual

confined by civil authorities may be processed for

discharge when his military record indicates that

he should be processed for separation by reason of

unfitness or unsuitability.

d. Commanders will not take action under this

chapter in lieu of disciplinary action solely to spare

an individual who may have committed serious

misconduct the harsher penalties which may be

imposed under the Uniform Code of Military

Justice.

13-3. Assignment action for personnel en route

to an oversea area. a. When action has been initiated

under paragraph 13-5a (2) or (3) against an

individual assigned to an oversea replacement station,

he will be transferred to the Army garrison

at that or another installation to await final action

on his case.

13-1

b. If the convening authority disapproves the

recommendation for separation, the individual will

again be assigned to the oversea replacement station

for compliance with his original orders.

13-4. Authority. a. HQDA approval is required

before individuals who have completed 18 or more

years of active Federal service may be discharged.

b. Commanders exercising general court-martial

jurisdiction are authorized to convene boards of

officers for unfitness and unsuitability and to order

separation, except that they may not order discharge

of personnel referred to in a above. This

authority may be delegated to a general in command

who has a judge advocate on his staff for

cases arising in that command. Every action taken

pursuant to such a delegation will state the authority

therefor. All references to commanders exercising

general court-martial jurisdiction, general

court-martial convening authority, and general

court-martial authority in this chapter include this

delegation authority.

c. Commanders exercising special court-martial

jurisdiction are authorized to convene boards of

officers for unsuitability and to order separation,

except that they may not order discharge of personnel

referred to in a above.

13-5. Applicability. An individual is subject to

separation under this chapter when one or more

of the following conditions exist :

a. Unfitness.

(1) Frequent incidents of a discreditable

nature with civil or military authorities.

(2) Sexual perversion, including but not limited

to-

(a) Lewd and lascivious acts.

(b) Indecent exposure.

© Indecent acts with or assault upon a

child.

(d) Other indecent acts or offenses.

(3) Drug abuse, defined as-

(a) Drug dependence, or the unauthorized

use, sale, possession, or transfer of any controlled

substance as defined in AR 600-50, or the introC

39, AR 635-200

duction of such controlled substance onto any

Army installation or other Government property

under Army jurisdiction.

(b) Use or possession for one’s own use of

controlled substances, or dependence thereon,

elicited as a result of an individual’s volunteering

for treatment or being identified by programed

biochemical testing, if the sole basis for separation.

In such cases, separation will be under honorable

conditions as specified in paragraph 13-31 a.

(4) An established pattern for shirking.

(5) An established pattern showing dishonorable

failure to pay just debts.

(6) An established pattern showing dishonorable

failure to contribute adequate support to

dependents or failure to comply with orders, decrees,

or judgments of a civil court concerning support

of dependents.

(7) Homosexual acts. Homosexual act means

bodily contact between persons of the same sex,

actively undertaken or passively permitted by

either or both, with the intent of obtaining or giving

sexual gratification, or any proposal, solicitation,

or attempt to perform such an act. Individuals

who have been involved in homosexual acts

in an apparently isolated episode, stemming solely

from immaturity, curiosity, or intoxication normally

will not be processed for discharge because

of homosexual acts. If other conduct is involved,

individuals may be considered for discharge for

other reasons set forth in this chapter. This applies

to those oases in which personnel have engaged in

one or more homosexual acts during military

service and-

(a) Trial by court-martial is not considered

as the course of action to be taken ; or

(b) The individual has been referred to

trial, but has not been tried by court-martial within

the meaning of article 44©, UCMJ; or

© The individual has been tried by courtmartial

within the meaning of article 44©,

UCMJ, subject to the limitations on administrative

action set forth in paragraph l-13.

b. Unsuitability.

(1) Inaptitude. Applicable to those persons

who are best described as inept, due to lack of general

adaptability, want of readiness of skill, unhandiness,

or inability to learn.

13-2

23 November 1972

(2) Character and behavior disorders. As

determined by. medical authority, character and

behavior disorders and disorders of intelligence as

suggested by various symptoms as enuresis or

somnambulism, listed in TB MED 15, except for

combat exhaustion (3263) and other acute situational

maladjustments (3264) when such disorders

are chronic and recalcitrant to attempts at rehabilition,

and interfere with the serviceman’s ability

to adequately perform his duties.

(3) Apathy (lack of appropriate interest),

defective attitudes, and inability to expend effort

constructively. While lack of appropriate interest

or other defective attitudes may be manifested in

conjunction with physical defects or mental or organic

diseases, including psychoneurosis, these

traits are not necessarily produced by the physical

or disease process. On the other hand, individuals

considered for elimination may attempt to excuse

immature, inadequate, and undisciplined behavior

on the basis of minor or nondisabling illnesses. The

presence of a physical or mental disease or defectproducing

impairment of function insufficient to

warrant separation under the provisions of AR

635-40 and related regulations is no bar to discharge

for unsuitability.

(4) Alcoholism. Unsuitability by reason of

chronic alcoholism may develop in persons who

have previously rendered many years of adequate

service It is a fully treatable condition. Rehabilitation

of an individual with this condition often

requires patient and repetitive effort. Its success is

enhanced by early recognition. When it becomes

apparent that an individual has become chronically

ineffective and has not responded to rehabilitative

measures within a reasonable time, or is not motivated

to take advantage of available therapeutic

measures, elimination may be indicated. Personnel

will be separated for unsuitability only if the major

reason for separation is noneffective duty performance

due to failure to cooperate with or

succeed in an alcohol rehabilitation program.

These conditions should not be confused with occasional

drunken episodes during which an individual

commits antisocial acts. In determining

whether separation will be for unfitness or unsuitability,

the neuropsychiatric report, record of prior

service, and other reasons for separation under a

23 November 1972 C 39, AR 635-200

above should be considered and, if determined to acts). Applicable to personnel who have not enbe

overriding, may be used as a basis for separation gaged in a homosexual act during military service,

for unfitness. but who have a verified record of preservice homo-

(5) Homosexual (homosexual tendencies, sexual acts. It is also applicable to other cases

desires, or interest but without overt homosexual which do not fall within the purview of a (7) above

Section II. COUNSELING AND REHABILITATING REQUIREMENTS

13-6. General. Commanders will insure that before

taking separation action against an individual

under this chapter, adequate counseling and rehabilitation

measures have been taken. Reassignments

accomplished in connection with rehabilitation

attempts will normally be made without expending

permanent change of station or military

personnel Army (PCS-MPA) funds. See paragraph

13-8c for exceptions to this policy.

13-7. Counseling. a. When an individual’s behavior

has been such that continued behavior of a

similar nature may warrant f&ion against him,

the individual will be counseled by a responsible

person or persons. Each counseling session will be

recorded (to include date and by whom counseled).

b. Counseling will include but will not be limited

to the following:

(1) Reasons for counseling.

(2) The fact that continued behavior of a

similar nature may result in initiating elimination

actions.

(3) The type of discharge that may be issued

and the effect of each type, if such action is taken

and separation accomplished. The counseling regarding

types and effects of various discharges will

be conducted in accordance with procedures of

paragraph 3, AR 350-21, and will be equally comprehensive,

to include the showing of the film,

“Take the Smart Way Cut-It’s Honorable,” if

practicable.

13-8. Rehabilitation. As a minimum, one of the

following measures will be taken :

a. Replacement stream personnel. Individuals

will be recycled (reassigned between training companies)

at least once.

cumstances involved in a case, the procedure

prescribed in c below will apply.

c. Permanent change of station transfer. When

a permanent change of station is considered essential

to provide a change in commanders, associates,

and living or working conditions as a means of

rehabilitating an individual, the commander exercising

general court-martial jurisdiction over the

individual may authorize such reassignment within

the same command (or may request the Office of

Personnel Operations to accomplish assignment

to another command) provided-

(1) The individual involved is in grade E-4,

or below, with less than 4 years of service Individuals

in grade E-4 with over 2 years of active

service and total obligated active service of 6 years

and all other personnel who are eligible by virtue

of grade and service for transportation of dependents

and shipment of household goods are not

eligible for reassignment under provisions of this

paragraph.

(2) A transfer to another station would not be

detrimental to the individual or to the Army (e.g.,

cases involving indebtedness, personnel undergoing

special counseling or other rehabilitative

type mental hygiene treatment programs, or maladjusted

or apathetic personnel who could not be

expected to respond to disciplinary controls or to

benefit from change of associates, regardless of

assignment locale).

13-9. Waivers. Counseling and rehabilitation may

be waived as follows:

b. Other than replacement stream personnel.

Individuals will be reassigned at least once, with a

minimum of 2 months of duty in each unit. Reassignment

should be between special court-martial

jurisdictions when this is possible, without a permanent

change of station. If this is not possible

and if reassignment between article 15 jurisdictions

is not considered desirable because of the cira.

Counseling required in paragraph 13-7 and

rehabilitation required in paragraph 13-3 may be

waived by the convening authority when separation

is being considered under the provisions of

paragraph 13-5a(2) or 13-5a(7), or under the

provisions of 13-5b (5).

b. The general court-martial convening authority

may waive the requirements of paragraphs 13-7

and 13-8 when he determines that further duty

of the individual will, in his best judgment, create

13-3

C 39, AR 635-200 23 November 1972

serious disciplinary problems or a hazard to the and 13-8 when he determines that the individual is

military mission or to the individual. obviously resisting all attempts to be rehabilitated

c. The general court-martial convening authority or that rehabilitation will not produce the quality

may waive the requirements of paragraphs 13-7 soldier acceptable in the baseline force

Section III. MEDICAL PROCESSING

13-10. Medical evaluation. when an individual

is to he processed for separation, the unit commander

must insure that an appropriate medical

evaluation and mental status evaluation are obtained.

Sufficiently detailed information about the

reasons for considering the individual unfit or unsuitable

should be furnished to allow the medical

examiners a thorough understanding of the contemplated

action.

a When the individual is under military control.

(1) The medical treatment facility providing

dispensary care will accomplish the final type

physical examination and mental status evaluation.

The individual will not be referred to a psychiatrist

for a psychiatric evaluation except when :

(a) Specifically requested by the individual

subject to separation action.

(b) Specifically requested by the commanding

officer recommending separation action.

© Deemed necessary and appropriate by

the medical examiner performing the requested

evaluation.

(d) Requested by the board considering

separation action.

(e) Individual is being considered for discharge

under the provisions of paragraph 13-5a

(7) or b (5).

(2) In all other cases, the physician performing

the physical examination will accomplish the

mental status evaluation. In the exceptional cases

detailed in (1) (a) through (d) above, reasons for

specifically requesting a psychiatric evaluation will

be provided to the psychiatrist.

(3) When an individual is being considered

for discharge under the provisions of paragraph

B-5a (7) or b (5) the psychiatrist doing the psychiatric

portion of the medical evaluation will be

furnished a copy of the documents which detail the

behavior upon which the suspicion of homosexuality

rests. In addition to the SF 88 (Report of

Medical Examination) and the SF 93 (Report of

Medical History), the medical treatment facility

13-4

will prepare a report of mental status evaluation

(fig. 14-2). The medical evaluation and the

Psychiatric study of the individual will include

the personal history, an opinion regarding the existence

of homosexuality, and an opinion as to

whether the individual should be eliminated from

the service under paragraph 13-5a(7) or b (5), or

retained in the service. If retention is recommended

and if considered appropriate, a statement of procedures

likely to be of value in the individual’s rehabilitation

may be included.

b. When individual is in civil confinement. When

a member is confined by civil authorities, the unit

commander may recommend elimination action to

the commander exercising general or special court

martial authority, as appropriate. If the commander

approves initiation of elimination action,

a type A medical examination will be scheduled.

The examination will be accomplished at the nearest

Armed Forces medical treatment facility, if

feasible, or by fee-basis physicians employed for

this purpose. If the medical examination is accomplished

by a civilian physician, the reports (SF 88,

SF 93, consultation reports, and mental status

evaluation) will be reviewed by a military physician

prior to separation action. Physical examination

and mental status evaluation will be accomplished

and reported as provided in a above.

13-11. Disposition through medical channels. a.

When the medical treatment facility commander

determines that an individual being considered for

elimination for unsuitability does not meet retention

medical standards (AR 40-501) he will process

the individual in accordance with AR 40-3. The

individual’s unit commander will be notified of

this action, and the elimination action will be

closed.

b. If it appears to the examining medical officer

that an individual being considered for elimination

for unfitness does not meet the retention medical

standards, he will refer the individual to a medical

board or, if there is no medical board at the

TAG0 249A

23 November 1972

examining facility, to the nearest medical treatment

facility that does have a medical board. The

medical treatment facility commander will furnish

a copy of the approved board proceedings to

the commander exercising general court-martial

juris

[yoggie2]

I had a guy in my unit at Ft. Eustis Va who got out on this it was also called at that time "failure to adapt" was in for 1 years and half after ETS....Rich

[rentalguy1]

FWIW, I was seperated with a General Discharge under Chapter 13 for being unable to pass a PT test (they refused to give me a medical, even though I was on a P3 profile for my knees and back). The characterized it as "Unsatisfactory Performance." It hasn't hurt me in regards to any military benefits, VA benefits, veteran's preference, or employability in general. My current disablities, however, have totally wrecked my employability from here on out.

Edited December 14, 2007 by rentalguy1

[Wings]

I fought the AFDRB for a discharge upgrade: approved from OTH to Honorable in 2003. It took every last brain cell I had left. The Board's reading room finally published my case. It is 13 pages long and 10 pages of my writing/research. I was denied once, then asked for a personal hearing. If anyone is needing information on upgrading their discharge due to MST, PTSD, shoot me an email.

PS It will be extrememly difficult to show this army regulation was not follwed in 1972. There is a "presumption of regularity" in government affairs: a stone cold regulation that can only be rebutted with evidence that shows the final decision was "arbitrary and capricious" or otherwise contrary to consitutional law.

Do some reading at U.S. COURT OF APPEALS FOR THE ARMED FORCES

http://www.armfor.uscourts.gov/

Do some reading at Boards of Review Reading Rooms http://boards.law.af.mil/

See also OPINION DIGEST http://www.armfor.uscourts.gov/ConsolidatedDigestOutline.htm

Edited December 14, 2007 by Wings

[Wings]

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Source: CNN http://www.cnn.com/2007/US/12/12/soldier.back.pay/index.html

LEESBURG, Florida (CNN) -- Samuel Snow thought when he got a check from the Pentagon that the Army was finally ready to give him the apology and the compensation he'd been denied for 63 years. He was wrong.

The Army imprisoned Snow in 1944 for a crime he says he couldn't have committed. The military overturned his conviction this year and sent him his back pay for the 15 months he spent in prison: $725.

Snow is one of just two defendants still alive from one of the biggest military trials of World War II.

Twenty-eight black soldiers were sent to prison after an Italian prisoner of war, Guglielmo Olivotto, was found hanged to death following a night of brawling at Fort Lawton in Seattle, Washington.

At a time when the military forces were segregated, 41 black soldiers were tried in one large group and were provided two attorneys to defend them all.

According to the Army, 28 of the soldiers were convicted of rioting, including Pvt. Samuel Snow, who spent 15 months behind bars.

Two of those soldiers also were convicted of manslaughter in the death of the POW and sentenced to 15 years in prison. Thirteen of the men were acquitted.

After being released from prison, Snow returned to the segregated South. He arrived home with a criminal record, a bad conduct discharge and no benefits such as those provided by the GI Bill of Rights. He became a janitor.

In October, the Army Board for Corrections of Military Records determined the defendants were denied a fair trial. The board said the prosecutor refused to give defense attorneys access to confidential evidence.

As a result of the findings, the Army overturned the convictions -- but stopped short of finding the defendants "not guilty."

"What it is saying is that they didn't receive their fair day in court," said Army spokesman Col. Dan Baggio.

The Army wrote checks to the surviving defendants as compensation for the back pay they were denied while in prison. Snow assumed that figure would be a substantial amount of money -- until the $725 check arrived at his home in central Florida.

If the payment had been adjusted for inflation, Snow would have received $7,768.13, according to the inflation calculator on the Labor Department's Web site.

If the $725 had been invested in 1946, when Snow was discharged from the Army, at 8 percent interest, compounded annually, it would have been worth more than $82,000 by now.

The Army said there are no legal provisions that allow it to consider adding accrued interest, adjustments for inflation or compensation for lost benefits.

Snow said the size of the check didn't surprise him. "I didn't think it was no kind of mistake," he told CNN. "They don't care."

The case might have been buried in history if not for the work of Seattle author Jack Hamann.

Hamann, a former CNN correspondent, spent years detailing the riot and flawed prosecution of the black American soldiers for his 2005 book, "On American Soil: How Justice Became a Casualty of WWII."

Fort Lawton is now a public park, and most of the buildings have been torn down. But Hamann was able to pinpoint the very spot where Snow says he was knocked unconscious as he left his barracks. The author said it proves Snow was innocent, because he never made it to the Italian POW barracks to join the fight.

"He never had a chance to be involved in the riot," Hamann said. "He was just responding quickly to what he thought was an attack, and he was knocked out of it almost immediately."

The revived story of how Snow and 27 others were convicted on little evidence caught the attention of Congress. U.S. Rep. Jim McDermott, D-Washington, asked the Army to review the nearly forgotten case.

"A real injustice had been done to a whole lot of black guys who were serving their country, and somebody had to speak up for them," McDermott said.

McDermott told CNN he does not blame the Army for going by the book but said he will look for ways Congress can help. Snow said he wants his name cleared, medical benefits and retirement pay.

But at age 83 and in poor health, he said he wonders if he will live long enough to see it happen.

[Ricky]

I love the Army and if I had it over to do again I would still give them 25 years of my life. However, the SB's march to their own drummer. How you are treated depends on who is interpting the regulation or law at the time. For the most part they are kinda like the VA - no accountability for their actions.