Department of Defense

INSTRUCTION

NUMBER 1332.40

September 16, 1997

USD(P&R)

SUBJECT:  Separation Procedures for Regular and Reserve
Commissioned Officers 

References:  (a)  DoD Directive 1332.30, “Separation
of Regular and Reserve Commissioned Officers,” March
14, 1997

(b)  Title 10, United States Code

(c)  DoD Directive 1010.4, “Alcohol and Drug Abuse by
DoD Personnel,” August 25, 1980

(d)  DoD 5200.2-R, “Personnel Security Program,” January
1987, authorized by DoD Directive 5200.2, May 6, 1992

(e)  Manual for Courts-Martial, United States, 1995
Edition

(f)  DoD Instruction 5505.8, “Investigations of Sexual
Misconduct by the Defense Criminal Investigative Organizations
and Other DoD Law Enforcement Organizations," February
28, 1994

1.  PURPOSE 

This Instruction:

1.1.  Implements reference (a).

1.2.  Implements Chapter 60 of reference (b) to implement
policy, assign responsibilities, and prescribe procedures
governing the administrative separation of Regular commissioned
officers for substandard performance of duty, for an
act or acts of misconduct or moral or professional dereliction,
or in the interest of national security.

1.3.  Implements Section 630 of reference (b) to implement
policy, assign responsibilities and prescribe procedures
governing the administrative discharge of regular commissioned
officers with less than 5 years of active commissioned
service in certain circumstances.

1.4.  Implements Chapter 1411 of reference (b) to implement
policy, assign responsibilities and prescribe procedures
governing the administrative separation of Reserve commissioned
officers for substandard performance of duty; for an
act or acts of misconduct or moral or professional dereliction;
or in the interest of national security.

1.5.  Implements Section 14503 of reference (b) to implement
policy, assign responsibilities and prescribe procedures
governing the administrative discharge of commissioned
officers with less than 5 years service in an active
status in certain circumstances.

1.6.  Implements Sections 1167 and 12687 of 10 U.S.C.
(reference (b)) to separate military officers under
confinement by sentence of court-martial after the sentence
to confinement has become final under Chapter 47 of
reference (b) and the officer has served in confinement
for a period of six months.

2.  APPLICABILITY AND SCOPE 

This Instruction:

2.1.  Applies to the Office of the Secretary of Defense
and the Military Departments.   The term “Military Services,”
as used herein, refers to the Army, the Navy, the Air
Force, and the Marine Corps.

2.2.  Applies to commissioned officers on the Active
Duty List and the Reserve Active Status List of the
Military Services.

2.3.  Does not apply to commissioned warrant officers
and retired commissioned officers of the Military Services.

3.  DEFINITIONS 

Terms used in this Instruction are defined in enclosure
1.

4.  POLICY 

It is DoD policy under DoD Directive 1332.30 (reference
(a)) to separate from Military Service those commissioned
officers who will not or cannot exercise the responsibility,
fidelity, integrity, or competence required of them.

5.  RESPONSIBILITIES 

5.1.  The Under Secretary of Defense for Personnel and
Readiness shall ensure compliance with this Instruction.

5.2.  The Secretaries of the Military Departments shall:

5.2.1.  Administer Service separation programs consistent
with the procedures in section 6., below.

5.2.2.  Address any recommendations for procedural changes
in this Instruction to the Under Secretary of Defense
for Personnel and Readiness.

6.  PROCEDURES 

Procedures and standards for implementation are in enclosures
2 through 8.

7.  EFFECTIVE DATE 

Instruction is effective immediately.

Enclosures - 8 

1.  Definitions

2.  Reasons for Separation

3.  Procedures for Nonprobationary Commissioned Officers

4.  Composition of Boards

5.  Board of Inquiry Procedures

6.  Procedures for Certain Probationary Commissioned
Officers

7.  Character of Discharge

8.  Guidelines for Fact-Finding Inquiries into Homosexual
Conduct

E1.  ENCLOSURE 1

DEFINITIONS

E1.1.1.  Active Commissioned Service.    Service on
active duty or full-time National Guard duty as a commissioned
officer in a grade above warrant officer.

E1.1.2.  Active Duty List.    A single list for the
Army, the Navy, the Air Force, or the Marine Corps that
is required to be maintained under Section 620 of 10
U.S.C. (reference (b)) and that contains the names of
all officers of that Military Service other than officers
described in Section 641 of reference (b) who are serving
on active duty.

E1.1.3.  Active Status.    The status of a Reserve commissioned
officer who is not in the inactive Army National Guard
or the inactive Air National Guard, on an Inactive Status
List, or in the Retired Reserve.

E1.1.4.  Bisexual.    A person who engages in, attempts
to engage in, has a propensity to engage in, or intends
to engage in homosexual and heterosexual acts.

E1.1.5.  Commander.    A commissioned or warrant officer
who, by virtue of rank and assignment, exercises primary
command authority over a military organization or prescribed
territorial area that under pertinent official directives
is recognized as a “command.”

E1.1.6.  Commissioned Officer.    An officer in any
of the Military Services who holds a grade and office
under a commission signed by the President, and who
is appointed as a Regular or Reserve officer.   It does
not include a commissioned warrant officer or a retired
commissioned officer.

E1.1.7.  Convening Authority.    The Secretary of the
Military Department concerned who may delegate that
responsibility, as appropriate.

E1.1.8.  Counsel.    A lawyer qualified under 10 U.S.C.
827 (b)(1) (reference (b)) or a civilian lawyer retained
at the commissioned officer's expense.

E1.1.9.  Drug Abuse.    As defined in DoD Directive
1010.4 (reference (c)).

E1.1.10.  Homosexual.    A person, regardless of sex,
who engages in, attempts to engage in, has a propensity
to engage in, or intends to engage in homosexual acts.

E1.1.11.  Homosexual Act.    Any bodily contact, actively
undertaken or passively permitted, between members of
the same sex for the purpose of satisfying sexual desires
and any bodily contact that a reasonable person would
understand to demonstrate a propensity or intent to
engage in such an act.

E1.1.12.  Homosexual Conduct.    A homosexual act, a
statement by the member that demonstrates a propensity
or intent to engage in homosexual acts, or a homosexual
marriage or attempted marriage.

E1.1.13.  Homosexual Marriage or Attempted Marriage.
   When a member has married or attempted to marry a
person known to be of the same biological sex.

E1.1.14.  Legal Advisor.    A judge advocate qualified
under 10 U.S.C. 827 (b)(1) (reference (b)) and appointed
to assist a Board of Inquiry.

E1.1.15.  Nonprobationary Commissioned Officer.    A
commissioned officer other than a probationary commissioned
officer.

E1.1.16.  Probationary Commissioned Officer.    A commissioned
officer on the Active Duty List with less than 5 years
of active commissioned service.   A Reserve commissioned
officer with less than 5 years of commissioned service;
however, a Reserve commissioned officer serving in an
active status before October 1, 1996, who was in a probationary
status prior to that date, shall be a probationary commissioned
officer for a period of 3 years from the date of his
or her appointment as a Reserve commissioned officer.

E1.1.17.  Propensity to Engage in Homosexual Acts. 
  A likelihood that a person engages in or will engage
in homosexual acts, which is more that an abstract preference
or desire to engage in homosexual acts.

E1.1.18.  Reserve Active Status List.    A single list
for the Army, the Navy, the Air Force, or the Marine
Corps, required to be maintained under Section 14002
of reference (b), which contains the names of all officers
of that Armed Force, except warrant officers (including
commissioned warrant officers) who are in an active
status in a Reserve component of the Army, the Navy,
the Air Force, or the Marine Corps and are not on an
Active Duty List.

E1.1.19.  Respondent.    A commissioned officer required
to show cause for retention on active duty.

E1.1.20.  Separation.    Discharge, retirement, or resignation.

E1.1.21.  Sexual Orientation.    An abstract sexual
preference for persons of a particular sex, as distinct
from a propensity or intent to engage in sexual acts.

E1.1.22.  Show-Cause Authority.    Any of the following,
as determined by the Secretary of the Military Department
concerned:

E1.1.22.1.  The Secretary of the Military Department
concerned or officers (not below the grade of major
general or rear admiral (upper half)) designated by
the Secretaries of the Military Departments concerned
to determine, based on a record review, that an officer
shall be required to show cause for retention in the
military service.

E1.1.22.2.  Commanders of reserve personnel centers,
commanders exercising general court-martial authority
and all general or flag rank officers in command who
have a judge advocate or legal advisor available.

E1.1.23.  Statement that a Member Is a Homosexual or
Bisexual, or Words to That Effect.    Language or behavior
that a reasonable person would believe was intended
to convey the statement that a person engages in, attempts
to engage in, or has a propensity or intent to engage
in homosexual acts.   This may include statements such
as “I am a homosexual,” “I am gay,” “I am a lesbian,”
“I have a homosexual orientation,” and the like.

E2.  ENCLOSURE 2

REASONS FOR SEPARATION

E2.1.  SUBSTANDARD PERFORMANCE OF DUTY 

A commissioned officer may be separated from a Military
Service, under regulations prescribed by the Secretary
of the Military Department concerned, when, as compared
to other commissioned officers of his or her grade and
experience, he or she is found to be substandard in
any of the following:

E2.1.1.  Performance of duty.

E2.1.2.  Efficiency.

E2.1.3.  Leadership.

E2.1.4.  Lack of response to training, in that performance
of duties in the officer's assigned specialty is precluded
or impaired to the degree of being unsatisfactory.

E2.1.5.  Attitude or character.

E2.1.6.  Failure to maintain satisfactory progress while
in an active status student officer program.

E2.2.  ACTS OF MISCONDUCT OR MORAL OR PROFESSIONAL DERELICTION


A commissioned officer may be separated from the Military
Service, under regulations prescribed by the Secretary
of the Military Department concerned, when he or she
is found to have committed an act or acts of misconduct
or moral or professional dereliction, which include
(but are not limited to) the following:

E2.2.1.  Serious or recurring wrongdoing, punishable
by military or civilian authorities.

E2.2.2.  Intentional or discreditable mismanagement
of personal affairs, including financial affairs.

E2.2.3.  Drug abuse.

E2.2.4.  Intentional neglect of, or failure to perform,
assigned duties or complete required training.

E2.2.5.  Conduct resulting in the loss of professional
status to such an extent as to impair performance of
assigned military duties.

E2.2.6.  Intentional misrepresentation of facts in obtaining
an appointment or in official statements or records.

E2.3.  HOMOSEXUAL CONDUCT 

Homosexual conduct is grounds for separation from the
Military Services under the terms set forth in paragraph
E2.3.1.2., below.   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.   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 in subsection E2.3.1., below.

E2.3.1.  A commissioned officer shall be separated under
this section if one or more of the following approved
findings is made:

E2.3.1.1.  The officer 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 the officer has demonstrated as follows, that:

E2.3.1.1.1.  Such acts are a departure from the officer’s
usual and customary behavior.

E2.3.1.1.2.  Such acts under all the circumstances are
unlikely to recur.

E2.3.1.1.3.  Such acts were not accomplished by use
of force, coercion, or intimidation.

E2.3.1.1.4.  Under the particular circumstances of the
case, the officer's continued presence in the Armed
Forces is consistent with the interests of the Armed
Forces in proper discipline, good order, and morale
of the Service.

E2.3.1.1.5.  The officer does not have a propensity
or intent to engage in homosexual acts.

E2.3.1.2.  The officer 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 officer 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 an officer that he or she is
a homosexual or bisexual, or words to that effect, creates
a rebuttable presumption that the officer engages in,
attempts to engage in, has a propensity to engage in,
or intends to engage in homosexual acts.   The officer
shall be advised of that 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.   In determining whether an officer has successfully
rebutted the presumption that he or she engages in,
attempts to engage in, or has a propensity or intent
to engage in homosexual acts, some or all of the following
may be considered:

E2.3.1.2.1.  Whether the officer has engaged in homosexual
acts;

E2.3.1.2.2.  The officer's credibility;

E2.3.1.2.3.  Testimony from others about the officer's
past conduct, character, and credibility;

E2.3.1.2.4.  The nature and circumstances of the officer's
statement;

E2.3.1.2.5.  Any other evidence relevant to whether
the officer is likely to engage in homosexual acts.

  

(The list in subparagraphs E2.3.1.2.1. through E2.3.1.2.5.,
above, is not exhaustive; any other relevant evidence
may also be considered.)

E2.3.1.3.  The officer has married or attempted to marry
a person known to be of the same sex (as evidenced by
the external anatomy of the persons involved).

E2.3.2.  The commissioned officer shall bear the burden
of proving throughout the proceedings, by a preponderance
of the evidence, that retention is warranted under the
limited circumstances described in paragraphs E2.3.1.1.
and E2.3.1.2., above.

E2.3.3.  Nothing in this Instruction or the Service
implementing regulations requires that an officer be
processed for separation when a determination is made
as follows, in accordance with regulations prescribed
by the Secretary concerned that:

E2.3.3.1.  The officer engaged in acts, made statements,
or married or attempted to marry a person known to be
of the same biological sex for the purpose of avoiding
Military Service.

E2.3.3.2.  Separation of the officer would not be in
the best interest of the Armed Forces.

E2.4.  RETENTION IS NOT CONSISTENT WITH THE INTERESTS
OF NATIONAL SECURITY 

Under DoD 5200.2-R (reference (d)), a commissioned officer
may be separated from a Military Service when it is
determined that the commissioned officer's retention
is clearly inconsistent with the interest of national
security.

E2.5.  SEPARATION IN CASES INVOLVING EXTENDED CONFINEMENT


Under Sections 1167 and 12687 of 10 U.S.C. (reference
(b)), a member of the Military Service sentenced by
a court-martial to a period of confinement for more
than six months may be separated from that member’s
Armed Force at any time after the sentence to confinement
has become final under Chapter 47 of reference (b),
and the person has served in confinement for a period
of six months.

E2.6.  MULTIPLE REASONS 

A commissioned officer may be considered for separation
for one or more of the reasons set out in sections E2.1.
through E2.5., above.   However, separate findings under
each applicable section shall be required for each separation
basis identified.

E3.  ENCLOSURE 3

PROCEDURES FOR NONPROBATIONARY COMMISSIONED OFFICERS

E3.1.  INITIATION OF ACTION 

The Secretary of each Military Department shall prescribe
procedures for the initiation of separation recommendations.

E3.2.  SHOW-CAUSE AUTHORITY 

E3.2.1.  The show-cause authority shall determine whether
an officer shall be required to show cause for retention
in the military service for one or more of the reasons
listed in enclosure 2, and as further defined by the
Secretary of the Military Department concerned.

E3.2.2.  The show-cause authority shall do, as follows:

E3.2.2.1.  Evaluate all information presented about
the case under consideration.

E3.2.2.2.  Determine whether the record is sufficient
to require the officer to show cause for retention in
the military service.

E3.2.2.3.  Under regulations prescribed by the Secretary
of the Military Departments concerned, close the case
if the authority determines that the officer should
not be required to show cause for retention in the military
service.

E3.2.2.4.  Report the matter for referral to a Board
of Inquiry if the authority determines that the officer
should be required to show cause for retention in the
military service.   The reasons for making such a determination
shall be provided to the officer in writing.

E3.2.2.5.  Refer the case to a Board of Inquiry if the
record supports a finding of homosexual conduct under
enclosure 2.

E3.2.2.6.  Consider the initiation of separation action
if the record supports a finding of drug abuse under
enclosure 2.

E3.2.3.  As in 10 U.S.C. 618(c)(2) or 14109(c) (reference
(b)), the Secretary of the Military Department concerned
may require an officer to show cause for retention on
active duty or in an active status based on the recommendation
of a promotion selection board.

E3.3.  BOARD OF INQUIRY 

E3.3.1.  Composition.    See enclosure 4.

E3.3.2.  Convening.    A Board of Inquiry shall be convened
under such regulations as may be prescribed by the Secretary
of the Military Department concerned.

E3.3.3.  Function.    A Board of Inquiry shall give
a fair and impartial hearing to a respondent.   The
Board of Inquiry is an administrative board that shall
consider all relevant and material evidence about the
case and shall function under rules and procedures established
by the Secretary of the Military Department concerned.
  The Board of Inquiry shall make findings on each reason
for separation and a recommendation as to whether a
respondent should be retained in the military service.
  The board also shall recommend the character of discharge,
in accordance with regulations prescribed by the Secretary
of the Military Department concerned, if it recommends
discharge.   Its findings must be supported by a preponderance
of the evidence.   The proceedings and hearing before
a Board of Inquiry are intended to give the officer
an opportunity to respond to, and rebut, the basis for
the contemplated change of status, after having been
informed of the contemplated change and the reasons
therefor.   The hearing shall provide a forum for why
the officer concerned thinks the contemplated action
should not be taken.

E3.3.4.  Determinations 

E3.3.4.1.  If a Board of Inquiry determines that the
respondent's retention in the military service is warranted,
the case is closed.   In the case of homosexual conduct,
the board shall make specific findings of the reasons
warranting retention in accordance with enclosure 2.

E3.3.4.2.  If a Board of Inquiry determines that the
respondent's retention in the military service is not
warranted, it shall report the matter to a Board of
Review, making specific findings of the reasons retention
is not warranted and, if appropriate, stating the character
of discharge to be issued to the respondent.

E3.3.4.3.  For officers on the Reserve Active Status
List, refer the case to the Secretary of the Military
Department concerned for disposition under 10 U.S.C.
14903(d) (reference (b)).

E3.4.  BOARD OF REVIEW 

E3.4.1.  Composition.    See enclosure 4.

E3.4.2.  Convening.    A Board of Review shall he convened
for members on the Active Duty List under such regulations
prescribed by the Secretary of the Military Department
concerned.

E3.4.3.  Function.    After a Board of Inquiry has determined
a respondent has failed to establish that retention
in the military service is warranted, the Board of Review
shall review the record for examining the grounds for
such determination.

E3.4.4.  Determinations. 

E3.4.4.1.  If a Board of Review determines that the
respondent has established that retention on active
duty is warranted, the case is closed.   In the case
of homosexual conduct, the board shall make specific
findings of the reasons warranting retention, in accordance
with enclosure 2.

E3.4.4.2.  If a Board of Review determines that the
respondent has failed to establish that retention in
the military service is warranted, the Board of Review
shall recommend to the Secretary of the Military Department
concerned that the respondent should be separated, making
specific findings of the reasons retention is not warranted
and, if appropriate, stating the character of discharge
to be issued to the respondent.

E3.5.  ACTION BY THE SECRETARY OF THE MILITARY DEPARTMENT
CONCERNED ON RECOMMENDATION OF THE BOARD OF REVIEW 

If the Board of Review recommends that the respondent
not be retained in the military service, the Secretary
of the Military Department concerned may direct the
following:

E3.5.1.  Separation.

E3.5.2.  Retention.

   

(The action of the Secretary of the Military Department
concerned is final.)

E3.6.  RETIREMENT OR DISCHARGE 

E3.6.1.  Retirement.    A commissioned officer separated
from active duty or from an active status, in accordance
with this Instruction, may request if eligible for voluntary
retirement under any law on the date of such separation,
and shall be retired in the grade and with the retired
pay for which eligible if retired under such provision.

E3.6.2.  Discharge.    A commissioned officer separated
from the military service in accordance with this Instruction,
if ineligible for retirement under any law on the date
of such separation, shall be as follows:

E3.6.2.1.  Honorably discharged in the grade then held
if separated only for substandard performance of duty;
or,

E3.6.2.2.  Discharged in the grade then held if separated
for misconduct, for moral or professional dereliction,
homosexual conduct, or in the interest of national security.
  The character of discharge shall be determined by
the Secretary of the Military Department concerned but
in no case shall it be more severe than that recommended
by the Board of Inquiry.

E3.6.3.  An officer of the Army National Guard of the
United States or the Air National Guard of the United
States whose Federal recognition as an officer of the
National Guard is withdrawn, shall be discharged from
the officer’s appointment as a Reserve officer of the
Army or the Air Force, as the case may be.

E3.7.  APPLICATION FOR RETIREMENT OR DISCHARGE 

At any time before final action in the case, the Secretary
of the Military Department concerned may grant a request
by the commissioned officer concerned for the following:

E3.7.1.  Voluntary retirement.

E3.7.2.  Transfer to the Retired Reserve

E3.7.3.  Discharge.

   

(The action of the Secretary of the Military Department
concerned is final.)

E3.8.  LIMITATIONS 

E3.8.1.  A commissioned officer required to show cause
for retention in the military service because of substandard
performance of duty and who is retained on active duty
or in an active status by a Board of Inquiry or a Board
of Review may not again be required to show cause for
retention for the same reasons within the year period
beginning on the date of the determination to retain.

E3.8.2.  Subject to subsection E3.8.3., below, a commissioned
officer required to show cause for retention in the
military service because of misconduct, moral or professional
dereliction, homosexual conduct, or in the interest
of national security, and who is retained on active
duty or in an active status by a Board of Inquiry or
a Board of Review may again be required to show cause
for retention at any time.

E3.8.3.  A commissioned officer may not again be required
to show cause for retention in the military service
solely because of conduct that was the subject of the
previous proceedings, unless the findings and recommendations
of the Board of Inquiry or Board of Review that considered
the case are determined to have been the result of fraud
or collusion.

E4.  ENCLOSURE 4

COMPOSITION OF BOARDS

E4.1.  COMPOSITION 

Each board convened in accordance with this Instruction
shall be composed of at least three commissioned officers
having the qualifications prescribed by section E4.2.,
below, of this enclosure.   The senior member shall
be the President of the Board.   A nonvoting legal advisor
may also be appointed to assist the Board of Inquiry.

E4.2.  OFFICERS ELIGIBLE TO SERVE ON BOARDS 

E4.2.1.  Each commissioned officer who serves on a board
must be an officer on the Active Duty List or on the
Reserve Active Status List of the same Military Service
as the respondent.

E4.2.2.  A commissioned officer may not serve on a board
unless he or she is serving on active duty or in an
active status in a grade above lieutenant colonel or
commander, and is senior in grade and rank to any respondent
being considered by the board.

E4.2.3.  If qualified commissioned officers from the
Active Duty List or from the Reserve Active Status List
are not available in sufficient numbers to comprise
a board, the Secretary of the Military Department concerned
shall complete the membership of the board by appointing
retired regular or Reserve (for consideration of Reserve
component members) commissioned officers of the same
Military Service.   The retired grade of such officers
must be above lieutenant colonel or commander and must
be senior to the grade held by any respondent being
considered by the board.

E4.2.4.  A retired general or flag officer, who is on
active duty solely for the purpose of serving on a board,
shall not while so serving, be counted against any limitations
on the number of general and flag officers who may be
on active duty.

E4.2.5.  No person shall be a member of more than one
board convened under this Instruction to consider the
same respondent.

E5.  ENCLOSURE 5

BOARD OF INQUIRY PROCEDURES

E5.1.  CHALLENGES 

Under regulations prescribed by the Secretary of the
Military Department concerned, board members are subject
to challenge for cause only.   If the membership of
the board is reduced to less than three officers, the
convening authority shall appoint additional members.

E5.2.  LEGAL ADVISOR 

The legal advisor, if appointed, shall perform such
functions as the Secretary of the Military Department
concerned may prescribe except that the legal advisor
has no authority to dismiss any allegation against the
respondent or to terminate the proceedings.

E5.3.  RECORDER 

The Government may be represented before the board by
a recorder whose duties shall be prescribed by the Secretary
of the Military Department concerned.

E5.4.  RIGHTS OF A RESPONDENT REQUIRED TO SHOW CAUSE
FOR RETENTION BEFORE A BOARD OF INQUIRY 

E5.4.1.  When the case is referred to a Board of Inquiry,
the respondent shall be notified in writing, at least
30 days before the hearing, of the reasons for which
he or she shall be required to show cause for retention
in the military service and of the least favorable characterization
of discharge for which the officer may be recommended.
  Notification shall be by registered mail or certified
mail, return receipt requested (or by an equivalent
form of Notice if such service by U.S. Mail is not available
for delivery at an address outside the United States)
to the member’s last known address or to the next of
kin under regulations prescribed by the Military Department
concerned.

E5.4.2.  The respondent shall be allowed a reasonable
period of time, as determined by the Board of Inquiry,
to prepare his or her showing of cause for retention
in the military service.

E5.4.3.  The respondent may appear in person at all
proceedings of the Board of Inquiry.   Nonresponse to
the notification letter may be construed as the respondent
voluntarily electing not to appear before the Board.

E5.4.4.  The respondent may be represented either by
military counsel appointed by the convening authority
or by military counsel of the respondent's own choice
(if the counsel of choice is determined to be reasonably
available under regulations prescribed by the Secretary
of the Military Department concerned), but not by both.
  The respondent may employ civilian counsel, at no
expense to the Government, in which case military counsel
need not be assigned, if so provided by regulations
of the Secretary of the Military Department concerned.

E5.4.5.  The respondent shall be allowed full access
to, and be furnished copies of, records about the case.
  However, the Board of Inquiry shall withhold any records
that the Secretary of the Military Department concerned
determines should be withheld in the interest of national
security.   When any records are withheld, the respondent
shall be furnished, to the extent practicable, a summary
of the records so withheld.

E5.4.6.  The respondent may request the appearance before
the board of any witness whose testimony is considered
to be pertinent to his or her case.   A determination
on the availability of the witness or whether the witness
shall be required to appear, and the materiality of
the witness, shall be made under regulations of the
Secretary of the Military Department concerned.   Witnesses
not on active duty must appear voluntarily and at no
expense to the Government, except as otherwise authorized
by the Secretary of the Military Department concerned.

E5.4.7.  Subject to regulations prescribed by the Secretary
of the Military Department concerned, the respondent
may submit, at any time before the board convenes or
during the proceedings, documents from his or her record
of service, letters, answers, depositions, sworn or
unsworn statements, affidavits, certificates, or stipulations.
  Those documents may include depositions of witnesses
not deemed to be reasonably available or of witnesses
unwilling to appear voluntarily.

E5.4.8.  The respondent may testify in his or her behalf
subject to 10 U.S.C. 831 (reference (b)).

E5.4.9.  The respondent and his or her counsel may question
any witness who appears before the board.

E5.4.10.  The respondent or counsel for the respondent
may present oral or written argument, or both, on the
matter to the board.

E5.4.11.  The respondent may, under regulations prescribed
by the Secretary of the Military Department concerned,
request a continuance, when necessary, for the preparation
of his or her case before the board.

E5.5.  BOARD DETERMINATION 

The Board of Inquiry shall decide the case on the evidence
received or developed during open hearings.   Voting
shall be conducted in closed session with only voting
members of the board in attendance.   All findings and
recommendations shall be determined by a majority vote.

E5.6.  REPORT OF PROCEEDINGS 

The record of proceedings shall be kept in summarized
form unless a verbatim record is required by the Show
Cause Authority (SCA) or the Secretary of the Military
Department concerned.   In all cases, the findings and
recommendations of the Board of Inquiry shall be stated
in clear and concise language and shall be signed by
all Board members concurring.   Those Board members
not concurring in the findings or recommendations, or
both, may file a statement of nonconcurrence, and the
reasons therefor, for inclusion in the record.   The
respondent shall be provided a copy of the report of
the proceedings and the findings and recommendation
of the board and shall be provided an opportunity to
submit written comments for consideration by the Board
of Review.   When the Board of Inquiry determines that
retention in the military service is warranted, and
the case is closed, a summarized report of the proceedings
may be prepared under regulations prescribed by the
Secretary of the Military Department concerned.

E6.  ENCLOSURE 6

PROCEDURES FOR CERTAIN PROBATIONARY COMMISSIONED OFFICERS

E6.1.  INITIATION OF ACTION 

E6.1.1.  In cases in which the SCA determines that an
honorable or general characterization is appropriate,
the SCA may initiate separation action without a Board
of Inquiry (subject to such regulation prescribed by
the Secretary of the Military Department concerned)
for any of the reasons stated in enclosure 2 of this
Instruction, or for such other reasons as the Secretary
of the Military Department concerned may prescribe by
regulation.   In such cases, the respondent shall be
advised in writing of the following:

E6.1.1.1.  The reason action was initiated and the character
of discharge (honorable or general) recommended.

E6.1.1.2.  That he or she may tender a resignation.

E6.1.1.3.  That he or she may submit a rebuttal or declination
statement instead of a resignation.

E6.1.1.4.  That he or she may confer with appointed
or retained counsel.

   

(The officer shall be permitted a reasonable period
of time to prepare his or her response.)

E6.1.2.  In cases where the SCA deems that an Other
Than Honorable Discharge may be appropriate, or in other
cases deemed appropriate, the SCA shall refer the case
directly to a Board of Inquiry.

E6.2.  PROCESSING 

E6.2.1.  In cases in which the SCA recommends an honorable
or general characterization of service, the recommendation
for separation, supporting documentation, respondent’s
rebuttal statement (if submitted), and any resignation
(if tendered) shall be forwarded to the Secretary of
the Military Department concerned.   The Secretary of
the Military Department concerned shall take one of
the following courses of action:

E6.2.1.1.  Accept the resignation (if tendered)

E6.2.1.2.  Deny the resignation (if tendered) and discharge
the respondent with an honorable or general characterization
of service.

E6.2.1.3.  Deny the resignation (if tendered) and refer
the case to a Board of Inquiry, if the Secretary of
the Military Department concerned deems that an Other
Than Honorable Discharge may be appropriate, or that
such referral is otherwise appropriate.

E6.2.1.4.  Retain the Respondent.

E6.2.2.  Cases referred to a Board of Inquiry by the
SCA or the Secretary of the Military Department shall
be processed in accordance with sections E3.3., E3.4.,
and E3.5. of enclosure 3.

E6.2.3.  In all cases, the action of the Secretary of
the Military Department concerned is final.

E7.  ENCLOSURE 7

CHARACTER OF DISCHARGE

E7.1.  DISCHARGE FOR SUBSTANDARD PERFORMANCE OF DUTY


A discharge shall be characterized as "Honorable" (whether
Honorable or General (under Honorable Conditions)) when
substandard performance of duty is the sole basis for
the discharge.

E7.2.  DISCHARGE FOR MISCONDUCT OR FOR MORAL OR PROFESSIONAL
DERELICTION, OR HOMOSEXUAL CONDUCT OR IN THE INTERESTS
OF NATIONAL SECURITY 

A discharge shall be characterized as "Honorable," "General
(Under Honorable Conditions)," or "Under Other Than
Honorable Conditions."

E7.2.1.  Consideration.    The character of a discharge
shall be predicated on the commissioned officer's behavior
and performance of duty while a member of a Military
Service.   Characterization normally shall be based
on a pattern of behavior and duty performance rather
than an isolated incident.   There are circumstances
in which conduct reflected by a single incident may
provide the basis for characterization.

E7.2.2.  Exceptions. 

E7.2.2.1.  A discharge shall be characterized as "Honorable"
when the grounds for discharge are based solely on pre-Service
activities, other than intentional misrepresentation,
or omission of facts, in obtaining an appointment or
in official statements or records.

E7.2.2.2.  A discharge shall be characterized as "Honorable"
or "Under Honorable Conditions" when the sole basis
for separation is homosexual conduct unless aggravated
acts are included in the findings.   A separation "Under
Other Than Honorable Conditions” may be issued if there
is a finding that the officer attempted, solicited,
or committed a homosexual act, as follows:

E7.2.2.2.1.  By using force, coercion, or intimidation.

E7.2.2.2.2.  With a person under 16 years of age.

E7.2.2.2.3.  With a person in a subordinate position.

E7.2.2.2.4.  Openly in public view.

E7.2.2.2.5.  For compensation.

E7.2.2.2.6.  Aboard a military vessel or aircraft.

E7.2.2.2.7.  In a 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.

E8.  ENCLOSURE 8

GUIDELINES FOR FACT-FINDING INQUIRIES INTO HOMOSEXUAL
CONDUCT

E8.1.  RESPONSIBILITY 

E8.1.1.  Only the member's commander is authorized to
initiate fact-finding inquiries involving homosexual
conduct.   A commander may initiate a fact-finding inquiry
only when he or she has received credible information
that there is basis for discharge.   Commanders are
responsible for ensuring that inquiries are conducted
properly and that no abuse of authority occurs.

E8.1.2.  A fact-finding inquiry may be conducted by
the commander personally or by a person he or she appoints.
  It may consist of an examination of the information
reported or a more extensive investigation, as necessary.

E8.1.3.  The inquiry should gather all credible information
that directly relates to the grounds for possible separation.
  Inquiries shall be limited to the factual circumstances
directly relevant to the specific allegations.

E8.1.4.  If a commander has credible evidence of possible
criminal conduct, he or she shall follow the procedures
in the Manual for Courts-Martial, (reference (e)) and
implementing regulations issued by the Secretary of
the Military Departments concerned.

E8.1.5.  The guidelines in this enclosure do not apply
to activities of Defense Criminal Investigative Organizations
and other DoD law enforcement organizations, which are
governed by DoD Instruction 5505.8 (reference (f)).

E8.2.  DEFINITIONS 

Terms used are defined in enclosure 1.

E8.3.  BASES FOR CONDUCTING INQUIRIES 

E8.3.1.  A commander will initiate an inquiry only if
he or she has credible information that there is a basis
for discharge.   Credible information exists when the
information, considering its source and the surrounding
circumstances, supports a reasonable belief that there
is a basis for discharge.   It requires a determination
based on articulable facts, not just a belief or suspicion.

E8.3.2.  A basis for discharge exists if, as follows:

E8.3.2.1.  The member has engaged in a homosexual act.

E8.3.2.2.  The member has said that he or she is a homosexual
or bisexual, or made some other statement that indicates
a propensity or intent to engage in homosexual acts;
or

E8.3.2.3.  The member has married or attempted to marry
a person of the same sex.

E8.3.3.  Credible information does not exist, for example,
when, as follows:

E8.3.3.1.  The individual is suspected of engaging in
homosexual conduct, but there is no credible information,
as described, to support that suspicion; or

E8.3.3.2.  The only information is the opinions of others
that a member is a homosexual; or

E8.3.3.3.  The inquiry would be based on rumor, suspicion,
or capricious claims concerning a member's sexual orientation;
or

E8.3.3.4.  The only information known is an associational
activity such as going to a gay bar, possessing or reading
homosexual publications, associating with known homosexuals,
or marching in a gay rights rally in civilian clothes.
  Such activity, in and of itself, does not provide
evidence of homosexual conduct.

E8.3.4.  Credible information exists, for example, when,
as follows:

E8.3.4.1.  A reliable person states that he or she observed
or heard a Service member engaging in homosexual acts,
or saying that he or she is a homosexual or bisexual
or is married to a member of the same sex;

E8.3.4.2.  A reliable person states that he or she heard,
observed, or discovered a member make a spoken or written
statement that a reasonable person would believe was
intended to convey the fact that he or she engages in,
attempts to engage in, or has a propensity or intent
to engage in homosexual acts; or,

E8.3.4.3.  A reliable person states that he or she observed
behavior that amounts to a nonverbal statement by a
member that he or she is a homosexual, or bisexual;
i.e., behavior that a reasonable person would believe
was intended to convey the statement that the member
engages in, attempts to engage in, or has a propensity
or intent to engage in homosexual acts.

E8.4.  PROCEDURES 

E8.4.1.  Informal fact-finding inquiries and administrative
separation procedures are the preferred method of addressing
homosexual conduct.   This does not prevent disciplinary
action or trial by courts-martial, when appropriate.

E8.4.2.  Commanders shall exercise sound discretion
regarding when credible information exists.   They shall
examine the information and decide whether an inquiry
is warranted or whether no action should be taken.

E8.4.3.  Commanders or appointed inquiry officials shall
not ask, and members shall not be required to reveal,
whether a member is a heterosexual, a homosexual, or
a bisexual.   However, upon receipt of credible information
of, homosexual conduct (as described in section E8.3.,
above) commanders or appointed inquiry officials may
ask members if they engaged in such conduct.  But the
member shall first be advised of the DoD policy on homosexual
conduct (and rights under 10 U.S.C 831, reference (b),
if applicable).   Should the member choose not to discuss
the matter further, the commander should consider other
available information.   Nothing in this provision precludes
questioning a member about any information provided
by the member in the course of the fact-finding inquiry
or any related proceeding, nor does it provide the member
with any basis for challenging the validity of any proceeding
or the use of any, evidence, including a statement by
the member, in any proceeding.

E8.4.4.  At any given point of the inquiry, the commander
or appointed inquiry official must be able clearly and
specifically to explain which grounds for separation
he or she is attempting to verify and how the information
being collected relates to those specific separation
grounds.

E8.4.5.  A statement by a Service member that he or
she is a homosexual or bisexual creates a rebuttable
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 given the opportunity to present evidence demonstrating
that he or she does not engage in, attempt to engage
in, or have a propensity or intent to engage in homosexual
acts.

E8.4.6.  The Service member bears the burden of proving,
by a preponderance of the evidence, 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.

E8.5.  LEGAL EFFECT 

The procedures in this enclosure create no substantive
or procedural rights.