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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 18906
Experience:  Lawyer and current JAG officer.
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I am currently being discharged for going UA from my school

Customer Question

Hello my name is*****
I am currently being discharged for going UA from my school house in Fort Lee VA, and I was gone for 40 days. I have since been back for over 3 1/2 months, and would like nothing more than to stay in the Marine Corps. What can I do to go about this? I have already wrote a letter to the General staying my reasoning and why I would benefit the Corps. Thank you please get back to me.
Submitted: 6 months ago.
Category: Military Law
Expert:  Allen M., Esq. replied 6 months ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

Your ability to resist here will be determined by what action they are planning on taking against you. If they are just separating you with a General discharge, then all you'll really get to do is write a letter on your own behalf asking to be kept. The authority that decides your separation can consider that letter.

If they are seeking an OTH discharge or even court martial here, you'd be able to try and fight the charges themselves, but the problem I see here is that you did commit the offense in question and a 40 day AWOL is very serious. Your new found desire to stay in doesn't change that fact.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

Customer: replied 6 months ago.
They have already determined it to be a OTH discharge, but something in my heart tells me there's more that I can do, and I strongly believe that I can find a way to stay in.
Expert:  Allen M., Esq. replied 6 months ago.

I certainly understand your feelings here, but what you believe in your heart doesn't change the law.

If they are seeking an OTH separation against you, you will be entitled to a board hearing where you can use an attorney to present your defense. You can state your reasons for leaving, and your reasons for wanting to stay. That board can consider the factors and they can certainly choose to retain you.

But this is all up to those individuals. You don't any legal argument here that would allow you to stay. Only a compelling factual argument, that members of the board find convincing, will allow you to be able to stay in.

Customer: replied 6 months ago.
Well they already NJPd me and I had to submit a separation package, even then is there still something I can do if they send me home? Or is there anyway I can possibly join another branch of military?
Expert:  Allen M., Esq. replied 6 months ago.

NJP doesn't stop the processing of a separation package, because neither is a criminal law action, so the concept of "double jeopardy" doesn't apply.

If you are separated, you can certainly file a DD Form 149 with the records corrections board, but you'd have to establish that the basis for your separation was either an error or an injustice. You can't claim error, because an administrative separation is legally available for an AWOL of more than 30 days.

You'd have to argue injustice, explaining why you went AWOL and stating that the reason you gave wasn't considered by your command. It's very difficult to change a reenlistment code, but that is how you'd have to do it.

You can't join another branch if you are administratively separated for misconduct. Your record would reflect a reenlistment code that wouldn't allow you to join any branch. So, you'd have to use that DD Form 149 process I mentioned to try and change the re code once you are out.

Customer: replied 6 months ago.
Can I file for the DD 149 while I'm still in?
Expert:  Allen M., Esq. replied 6 months ago.

You can, but this determination is not made by the active military. It won't stop your separation and it takes about a year before any results come from it.

Filing now versus filing once you are out really is only a time issue. It won't change the ultimate process, which is that it won't be able to be considered until after you've already been separated (if you are, in fact, separated).

Customer: replied 6 months ago.
Okay gotcha, I also heard that I can get my CO to write a letter of recommendation to the General
Expert:  Allen M., Esq. replied 6 months ago.

Yes, you can, but really if you have already gone through a board hearing and they recommended an OTH, the General is probably going to go with the board.

Your CO can make an appeal to the General to give you a General discharge instead, and that might be possible, but I've never seen a board recommendation for separation with an OTH completely ignored by the determining commander.

Expert:  Allen M., Esq. replied 6 months ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

Customer: replied 6 months ago.
Would it be possible to get the OTH upgraded to a general, then the general upgraded to an honorable? Then re-enlist in the Marine Corps?
Expert:  Allen M., Esq. replied 6 months ago.

It is technically possible, but exceedingly unlikely.

To get an upgrade to a discharge, you have to establish that the discharge was given as an error or an injustice.

It's the same process I mentioned before, using DD Form 149.

Customer: replied 6 months ago.
Okay so would a death in the family be a probable cause?
Expert:  Allen M., Esq. replied 6 months ago.

A death in the family would be a fact that you could point to.

If you raised that issue with your command, and they ignored it, then certainly the board could consider it an injustice to give you an OTH.

But they would not upgrade it all the way to honorable. You still did go AWOL, so while you could soften the OTH, you won't get an honorable and you won't be able to rejoin.

Expert:  Allen M., Esq. replied 6 months ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

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