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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 16121
Experience:  Lawyer and current JAG officer.
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I am about to meet the Brigade Col for a positive UA fot THC.

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I am about to meet the Brigade Col for a positive UA fot THC. I have tried to talk with the jag office and all of the offices I contacted only assist active duty. I had 4 1/2 yrs active and have been in the NJ national guard since 2009 , all of this time with no incidents. I want to find out how I should answer questions appropriately and if this would affect any of my veterans benefits....ie voc rehab, 9/11 gi bill? Would it be worth recommending a court martial board if they push for discharge?
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.
Hello, my name is XXXXX XXXXX I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines, including JAG.

You can't deny a discharge to get a court martial. The only ability you have to force a court martial is when they offer you non-judicial punishment. Then you can refuse that and demand trial by court martial.

As for what to say to command, the best thing is to say nothing. Invoke your right to silence and make them decide that they are going to do. Then, once you know what actions they are going to take, you can take the appropriate counter actions.

If you are discharge for drug use, you will not get an honorable discharge from your present National Guard service. It would most likely be a general. That being said, if you have an honorable discharge from your active duty time, you can use that discharge to get your GI Bill. You just need one honorable to get the GI Bill.

Customer: replied 1 year ago.

I can't seem to find the SOP for UA for NJ NationalGuard. What, if there is a normally, does normally happen for a first time offense.I am also in the OCS program, so I am not a troublemaker and I am not lazy by any means, I have always been a model soldier. I hppe those things can weigh in my favor

Expert:  Allen M., Esq. replied 1 year ago.
There isn't any standard operating procedure on what must be done with first or second offenses. That would be considered undue command influence, which isn't permitted.

What there is though is a "zero tolerance" policy across the military as a whole. Any commander that refuses to take action on a drug offense runs the risk of their commander taking the action from them (which they can do) and initiating some action. While the higher level commander can't say "You will do this" they certainly can say "I question your leadership in that you failed to take action here and made me have to do it. That will be reflected in your OPR."
Customer: replied 1 year ago.

I apologize to continue, but " take action". I know that means they have to start discharge papers but everything I have read says it up to the commader if they actually do discharge someone. Is the "normal " course of action a dischsrge?

Expert:  Allen M., Esq. replied 1 year ago.
Yes, they do have a choice. That's what I said. They have the option to not initate a discharge, but their commander above them also has a choice to take the power from them and raise it up to their level.

Your commander could also initate the discharge, but recommend retention. This is actual the most common action when a commander thinks someone should be retained. It's much less harmful to their careers than forcing their commander above them to strip them of the power.

Yes, the normal course of action is discharge.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 16121
Experience: Lawyer and current JAG officer.
Allen M., Esq. and other Military Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for all your advice.

Expert:  Allen M., Esq. replied 1 year ago.
No problem. Take care.

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Allen M., Esq.
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