Pattern of Misconduct in the Army

January 10, 2025

A Pattern of Misconduct in the Army is defined by AR 635-200, paragraph 14-12b. Formally, it is defined as "[d]iscreditable involvement with civil or military authorities or [c]onduct prejudicial to good order and disciple including conduct violating the accepted standards or personal conduct found in the UCMJ, Army Regulations, the civil law, and time-honored customs and traditions of the Army."

If a Soldier is found to have a pattern of misconduct in the Army, he/she is subject to being separated with a less than honorable discharge. However, before a Soldier can be separated for a pattern of misconduct, his/her chain of command must ensure that the Soldier has received adequate counseling and rehabilitation. Specifically, AR 635-200, paragraph 1-17 states the following:

"...[C]ommanders 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...[w]hen a Soldier’s conduct or performance becomes unacceptable, the commander will ensure that a responsible official formally notifies the Soldier of his or her deficiencies. At least one formal counseling session is required before separation proceedings may be initiated for [a pattern of misconduct].

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 the requirements and guidance in chapter 17 of this regulation.

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

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

Furthermore, before a Soldier can be separated for a pattern of misconduct in the Army, Soldiers must 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."

However, this requirement can 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." Specifically, if waiving this requirement and separating a Soldier for a pattern of misconduct in the Army without a rehab transfer, the separation authority may believe that the Soldier has highly disruptive behavior, be actively resisting rehab efforts, or the installation is too small to have another unit available.

If a Soldier is facing separation for a pattern of misconduct in the Army, he/she will be presented with formal initiation paperwork and the supporting evidence (i.e. counseling forms). If he/she has under 6 years of service, then the only due process provided is a written rebuttal. Any Soldier in this situation has Trial Defense Services (TDS) available for assistance; however, they are unlikely to provide the time and attention needed to get the Soldier retained. For example, often times there is additional factual evidence (statements, text messages, photos, videos, emails, etc.) that can be collected; TDS will almost never help in these matters and will typically advise a Soldier to draft something up and they will review. Civilian lawyers can be retained to collect evidence and write the Soldier's rebuttal. This increases the chances for retention.

If a Soldier facing separation for a pattern of misconduct in the Army has over 6 yeas of Service, then he/she cannot be separated without being afforded an appearance before a separation board. Soldiers in this situation can also submit something called a conditional waiver. Any Soldier in this situation should immediately consult an experienced military defense lawyer. The results of a separation board are binding on the separation authority, except that the separation authority can make it better for the Soldier. For example, if retained by a separation board, then the Soldier must be retained. If separated with an other than honorable discharge by a separation board, the separation authority can do anything from retaining the Soldier to separating with any characterization of service up to other than honorable.

Soldiers facing separation for a pattern of misconduct can also request a suspended separation, which, if accepted, essentially places him/her on a period of probation. If the Soldier makes no mistakes during this time period, then he/she is not separated. If he/she does make mistakes, then they are separated per the original chapter action.

A Soldier facing separation for a pattern of misconduct can receive an other than honorable discharge, general under honorable conditions discharge, or honorable discharge. However, an other than honorable discharge cannot be given without appearance in front of a separation board, which most units will want to avoid. Furthermore, only the Commanding General can issue an honorable discharge for a pattern of misconduct separation action, which almost never happens. Therefore, almost all pattern of misconduct discharges result in a general discharge, issued by the Brigade Commander.

Any Soldier facing separation for a pattern of misconduct should not give up and should not rely on the advice and assistance of TDS. Instead, consulting an experienced military defense attorney greatly increases the chances of retention and/or a better characterization of service.

This Article was written by Attorney Matthew Barry. Attorney Barry is highly rated by former clients and has a proven track record of success.

The Law Office of Matthew Barry represents Soldiers worldwide. He has offices on the East Coast, West Coast, and in the Central U.S. Attorney Barry and his team will travel to any base, worldwide, to represent Soldiers accused of misconduct.