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I received a Other Than Honorable Discharge under a Separation

Customer Question
In Lieu of Trial for...
I received a Other Than Honorable Discharge under a Separation In Lieu of Trial for a UA offence. I am a legal resident of the U.S. Would the discharge affect me in getting a citizenship? Also, I have been trying to get jobs in every single place possible, I am currently a student and in dire need of a job. How possible is it that the discharge is affecting my job qualifications and is it possible to upgrade it from OTH to a Honorable?
Submitted: 8 years ago.Category: Military Law
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Answered in 18 hours by:
6/9/2009
Military Lawyer: P. Simmons, Military Lawyer replied 8 years ago
P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 35,677
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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You can apply for an upgrade to your discharge charachterization, certainly it is possible...but it is not an easy prospect.


The process is straightforward. You can begin the process here

http://www.archives.gov/veterans/military-service-records/correcting-records.html

To be successful, you will need to demonstrate, under the circumstances, that an upgrade to the charachterization is the appropriate result in your case. Typically this would be done by showing that the result at the time was wrong for some reason...for example if there was some error in the court martial process that was not addressed on the record or in the appeals process.

The board will also consider your post service conduct, but this to a lesser degree than than your service conduct.

Unlike the urban legend, there is no "automatic upgrade" for discharges...in fact only a small percentage of requests are granted.

To have the greatest chance for success you should consider working with an attorney that can help you assemble the package you will submit. A google search under "military lawyer upgrade discharge" will net you several prospects...I would talk to several to see if one can be of help...but understand this is a long shot...beware of promises.


As to immigration issues, the fact you were not convicted is a good thing, but the fact you dodged that bullet by taking the separation may prompt the officials to inquire further into the underlying circumstances prior to an offer of citizenship is extended.



BotXXXXX XXXXXne: Its possible but difficult to do. Best of luck



Please let me know if you have more questions and I will do my best to assist, otherwise, please accept so I may get credit for my work.
P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 35,677
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Customer reply replied 8 years ago

Just to be sure, in other words an upgrade would only be possible if errors were made during the separation process or the appeal process? Since there was no court martial and I was separated through a SILT would there be a way to go about this? I was discharged after going UA after completing boot camp. I was only in the service for 3 months.

Military Lawyer: P. Simmons, Military Lawyer replied 8 years ago
To rate an upgrade, you need to show that there was some mistake, or somehow you did not get the "fair" or appropriate discharge. If this were not the policy, it would be fair to others...that is, if all you had to do was apply for the automatic discharge, it would not be fair to all the folks who did the entire contract before they got out.

So yes, you need to be able to point to something...anything that shows in your case, the charachterization was wrong or unfairly given.

In your case specifically it will be tough, since you bargained for the SILT to avoid the criminal conviction.


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