the national guard says that i tested positive on a drug screen that happened almost three years ago. i was not told about it until a year and seven months later when i received my initial counseling where i said that this must be a mistake and requested that the sample be retested at a lab of my lawyer's choice. this counselling was a year and two months ago and my lawyer has repeatedly requested this retest as well as the chain of custody documents but nothing has been produced. no date for a board has been set but the intention to have one has been stated. can they continue to ignore my requests for retest and documentation?
State/Country relating to question: United States
Thanks for the chance to help. I am an attorney with over 12 years military law experience.Sorry to have to bear bad news, but there is no statute of limitations on a separation boardAnd there is no right to a retest. There is a right to documentation. Before they can separate you they must present evidence of the drug use...so they need to present the drug test results. If they refuse to provide you with documentation, that would be grounds to requeste to the separation authority that they not discharge you.
when i was presented my initial counselling from my commander, part of that initial counselling stated that i had the right to have the urine sample retested either at the dod lab or at an approved nida testing facility of my choice at my own expense. underneath this statement were blocks to initial beside one of three choices. 1. to not have it retested 2. to have it retested at the dod lab. 3. to have it sent to a lab of my choice at my own expense.
if i do not have a right to have the example retested then why was this right so clearly stated in my DA4856 from my commander.
No idea. That is, there is no Army Regulation that requires a retest. So not sure why they are telling you that you have such a rightThat said, if your local commander gave you that right, then you can demand it.Specifically, if your commander gave you the right to a retest, then you can assert that right now. And if they refuse, you can raise this as an issue to the separation authority if they try and separate you
Just for clarity and then i will release the funds. If the right to retest the sample is stated in the 4856 initial counselling given to me by my commander, then i have that right.
Sorry for the delayYes. If the commander gave you a right, for example, the right to a retest, and now is denying it? That would be a due process violation.Again, there is no "automatic right"..that does not exist. At lest not in any AR (Army Regulatio)But if your local commander is giving you such a right? Then can not then take it away.Well...they can (seems yours has)....but that would be a violation of due processDue process are the rights you have to defend yourself in a criminal or administrative actionSo if the commander told you that you had a right to a retest, then tok it away, that would be a due process violation and you can raise that to the separation authority if they try and chapter you.And if the separation authority ignores you, then raise it with the board of corrections for military records.
Retired Marine Corps Lawyer, Veterans Services Officer (VSO)
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