How can i get my other than honorable disharge upgraded?

Asked over 5 years ago - Boise, ID

well heres the run down i was in the national gaurd for about 2 years and i voluntarily switched over to the army reserve i missed a few drills and i submitted medical documents for some of the times i wasnt there and they gave me a (oth discharge) thru out my past ive never tested positive drugs or been in any trouble always passed my p.t. tests. i submitted my case to the review board and it got denied so i just recently wrote my congressman. i want to get back into the army.. am I taking the right steps. what do you suggest? i know i also have another chance at the board to go in person... what do i do?

Attorney answers (1)

  1. Jeffrey Alan Lustick

    Pro

    Contributor Level 14

    Answered . An Other than Honorable Conditions Discharge is the most severe form of administrative discharge. According to military regulations, this type of discharge represents "a serious departure from the conduct and performance expected of all military members." Missing drill weekends or being AWOL is not usually a basis for receiving an OTH discharge. Are you sure this was the only basis for your being discharged? Did you have a pattern of misconduct or did you commit a civilian criminal offense?

    You provide a lot of details, but I am curious about one thing. Under service guidelines, no enlisted service member can receive an OTH without first being offered a formal discharge board. A formal discharge board is conducted similar to a court-martial trial and the person being discharged has a chance to present evidence through military defense counsel. The board, which must consist of commissioned officers must decide if what you did warrants discharge or retention and if you are discharged, what characterization you should receive. The board can usually recommend to the discharging authority anything from a full Honorable discharge up to an OTH, if that is what the commanding discharge authority asked for preliminarily.

    I was a military defense counsel in the Air National Guard, and I know that such formal discharge proceedings are extremely rare. Usually, the State HQ of the local National Guard is willing to drop the discharge sought from an OTH to a General Under Honorable Conditions just to save the time, effort, and expense of having a board. When the enlisted member is lower in grade than E-5 and has less than a certain number of years of service, they can be discharged without a board if the discharge sought is General or lower. Formal discharge boards have many moving parts and usually tie us several personnel over many successive drill weekends.

    My concern here is whether or not you were (1) Offered a formal board before you were discharged; and (2) if you legitimately waived that board. If you were never offered the board, then this is definitely something you need to raise in a subsequent appeal. Anytime a OTH discharge is sought, a formal board must be offered. On the other hand, if you waived the board, was this a knowing, intelligent, and voluntary waiver?

    On the latter issue, almost all state National Guards have no dedicated defense counsel . When I served as Washington State's defense counsel for three years, I believe I was the only attorney in the entire National Guard who was dedicated to that job alone. I worked for myself and was not under the command of any of the commanders of the units where my clients came to me from. The overwhelming majority of state defense counsels have conflicts-of-interest. You may be assigned a JAG officer as your defense counsel who is under the command of the commander who is trying to discharge you. Even more of a problem is the fact that your JAG defense counsel may even work directly under a senior JAG who is the lawyer for the commander who wants to discharge you. Thus, if you were given legal advice to waive your formal board by a JAG with these sorts of conflicts of interest, that would also be something I would bring up on the appeal.

    There are many more issues which you may or may not be able to bring up on your appeal. I do not have time or the space to write all of them down here. But I hope these two issues get you thinking about what options you may have on your appeal.

    Good luck.

    Jeffrey A. Lustick

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

27,616 answers this week

3,053 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

27,616 answers this week

3,053 attorneys answering