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I received an Other Than Honorable discharge in 2003 after…

I received an Other...

I received an Other Than Honorable discharge in 2003 after failing a urinalysis. Is there any way for me to upgrade my discharge?

Lawyer's Assistant: Are you overseas or stateside?

Stateside, Florida

Lawyer's Assistant: Have you talked to anyone in the chain of command about this?

No. It was 13 years ago. At the time, I was under heavy medication after an accident and I basically just signed where they told me to.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I was in the Florida National Guard.

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Answered in 6 minutes by:
9/14/2017
Allen M., Esq.
Category: Military Law
Satisfied Customers: 20,573
Experience: Lawyer and current JAG officer.
Verified

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.

Technically yes, but it will depend greatly on what argument you are making here to justify an upgrade. Discharge status is intended to be a permanent reflection of your military service. There is no intention, under the law, for upgrades to be a normal course of action based on the passage of time. Instead, upgrades are only permitted were there is an error or injustice in the record.

An OTH is legally available for a failed drug test, so this isn't legally an error. You'd have to argue that the receipt of the OTH is an injustice. To do so, you'd have to have evidence that your situation was treated more harshly than others in your same unit. By creating a record showing disproportionate punishment, you'd be able to argue injustice. If there was evidence that wasn't considered which would have called into question the test, that too could show injustice.

There are other arguments, but these aren't legal arguments. They are factual arguments, based on the individual circumstances surrounding your separation and they would stem from your individual belief that the punishment was unjust. To make this argument, you'd need to file a DD Form 149 with the military records corrections board. The form can be found online and the form gives you the address that you need to send it to (based on your branch of service).

If you can't make any of those arguments, you cannot receive an upgrade.

If you have any further questions or other facts that you would like me to consider, 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.

Allen M., Esq.
Category: Military Law
Satisfied Customers: 20,573
Experience: Lawyer and current JAG officer.
Verified
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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