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I would like to change my OTH discharge to Honorable. I believe

my OTH was not justified....
I would like to change my OTH discharge to Honorable. I believe my OTH was not justified.
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Answered in 30 minutes by:
12/13/2014
Allen M., Esq.
Category: Military Law
Satisfied Customers: 19,344
Experience: Lawyer and current JAG officer.
Verified
Hello, my name is ***** ***** I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines, including JAG.
To be able to upgrade your discharge in that fashion, you have to file either a DD Form 293 with the discharge upgrade board (within 15 years of the discharge) or a DD Form 149 with the military records corrections board.
Getting a change from an OTH to an honorable though, is very unlikely, unless you can prove that the discharge shouldn't have been given in the first place. What you have to understand about discharge upgrades is that they are not automatic and the standard to get one is very high. They don't consider your positive life changes or how you have done since the service. They don't consider how the discharge may be holding you back. They are interested in two things.
1. Was the discharge an error? For example, did you get the wrong discharge narrative and status when you should have gotten a more favorable one under the law. They are not concerned with the fairness of the discharge status in this consideration. They are only looking to see if the discharge given was one that legally could be given in the circumstances. If it was, they won't change it as an error and you have to look to #2.
2. Was it an injustice? Not you state that you feel it was not justified and that may be what your argument has to be here, but you'll need some evidence suggesting true injustice. For example, you'd need some evidence showing that only African American's got OTH's for a certain allegation, while whites got General discharges. That would be an injustice. Another example might be if you can show that evidence, which exonerates you, was ignored by command in an attempt to railroad through the OTH. There are many other possible examples, but the point is that you have to convince the board that justice requires the upgrade.
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Customer reply replied 2 years ago

I was working with the XO and contractors to document and evaluate the the progress and issues with the helo based LAMPSIII system. My photos were used for an article in Surface Warfare Magazine. I was really into my job and very professional.
Got caught smoking pot. Reagan's Zero Tolerance had just begun. The XO took it personally. The (can't remember title of typist?) came to me to let me know that the XO was filling out all the paperwork himself. Also I was entitled to copies of all paperwork. I requested it but only got a few basic docs. I believe the OTH was not justifiable.

Is the DD Form 149 for requests after more than 15 years?

Yes, a DD Form 149 is for those over 15 years.
I will tell you that your facts aren't very strong for an upgrade. I don't say this to discourage you, but you have to understand that legally an OTH is available for drug use separations and it is common for drug use separations to this day.
Now, you can certainly argue that the XO here took things personally, and pushed an OTH based more on overarching political policy rather than the actual offense itself, but that's a difficult argument to make before the board. It is one that doesn't work often, but can work if you get the right board (they change frequently).
For that case though, you can't try for an Honorable. Your facts don't legally justify it. You did commit an offense that allowed for a General or OTH. Your real battle before the board then is trying to get it changed to a General. Filing for an Honorable would guarantee that you're case would not be considered seriously.
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Customer reply replied 2 years ago

Thank you for making it clear. I won't try then. My goal was Honorable So I could participate in the Illinois Veteran Tuition grant program (not avail for general disch.).

Thanks for your help, it saved me a lot of otherwise wasted time.

Sorry I couldn't give you better news. Take care.
Allen M., Esq.
Category: Military Law
Satisfied Customers: 19,344
Experience: Lawyer and current JAG officer.
Verified
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