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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 18809
Experience:  Lawyer and current JAG officer.
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I am a 1Lt in the Air National Guard. I am a traditional

Customer Question

Good morning-
I am a 1Lt in the Air National Guard. I am a traditional guardsman, and a pilot. While attending ground school for a civilian airline, I took a medication that was not prescribed to me and failed a random drug test, which ultimately resulted in my termination.
I immediately notified my flight commander, which was obviously another terrible mistake. He has been a strong advocate for me throughout the whole process, which is moving towards me being administratively separated. Originally I was told my command was going to push hard to retain me, but recently my commander told me that I should consider resigning to save my discharge.
My question is this. From my understanding of the regulations, I would have the opportunity to resign once charges are brought. I also think the regulations state that, since I voluntarily disclosed the information about the failed drug test, it can't be used in determining my characterization of service/discharge type. Is that correct?
Under these circumstances, would I be allowed to offer a resignation conditional on an honorable discharge? My 11-year service record is otherwise impeccable. Also, would that resignation preclude any further military service? Thank you
Submitted: 14 days ago.
Category: Military Law
Expert:  Allen M., Esq. replied 14 days 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.

Whether or not your failed test can be used against you depends on just when you self-reported. If you took the medication, self-reported and then were tested, the test can't be used.

If you took the medication, were tested and then self-reported before the test results came back, that doesn't legally count as self-reporting because it was precipitated by being tested. Therefore, the result could be used in coming up with your characterization of service following the separation.

You certainly have the right to request resignation in lieu of being charged, but that's not a right that has to be honored. They can accept it or reject your application. Typically though, a resignation is an Other than Honorable discharge, not an Honorable. The idea is that you trade an OTH to avoid a federal criminal conviction.

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 14 days ago.
Just to confirm, upon re-reading my initial explanation, the drug test was issued by my civilian employer, not by the military. So if there is no way to get an honorable discharge by resigning, then my best bet is just to try and fight for being retained? My unit hasn't said anything about a federal criminal case, but my commander seemed to indicate I could avoid the possibility of an OTH discharge altogether if I elected to resign.
Expert:  Allen M., Esq. replied 14 days ago.
They can accept a conditional separation with a general, but an honorable is highly unlikely. It requires very high level approval.

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