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Can an Other Than Honorable Discharge be upgraded later if it was for failing the APFT and Height/Weight?

Honolulu, HI |

A Soldier of mine is concerned that he will be discriminated against for having an OTH on his record. He recently received a BA Degree and has no criminal record.

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Attorney answers 5

Best Answer
Posted

An OTH is not authorized unless there is some other criminal misconduct that is also a basis for separation.
A general is a possible quality of discharge.
He can try to upgrade after discharge.

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Posted

You can't get an OTH under these circumstances. Worst case scenario is a General (Under Honorable Conditions.) Any discharge "can" be upgraded. Whether there is a sufficient basis to do so is determined on a case by case basis.

This post is for information purposes only and does not constitute legal advice, nor does it establish an attorney client relationship with Mr. Cassara.

Posted

If the only basis for discharge is physical fitness failure, then an OTH is not authorized. Separations for physical fitness failures are separations for unsatisfactory performance under AR 635-200, Chapter 13. As such, the worst authorized service characterization is "under honorable conditions," which is popularly known as a "General" discharge. Any soldier with a less than honorable discharge can pursue a discharge "upgrade" through the Army Discharge Review Board (DRB); however, where there are sufficient grounds for the service characterization, upgrades are rarely granted. That's not to say, that one should not be pursued, but I would first recommend a consult with an attorney who can do a complete case evaluation. Often, it's worthwhile to wait several years before pursuing such a remedy. A soldier has 15 years from the date of discharge to apply to the DRB for review.

Law Office of Stephen P. Kelly (508) 983-1479--Criminal Defense, Military Law, Divorce & Family Law, Appeals. DISCLAIMER: Answers to posted questions are for general interest only and do not constitute legal advice. No attorney-client relationship is established by virtue of any answer posted by the attorney.

Posted

To piggyback on my colleagues' answers, if your friend has an OTH, then he likely was separate from the service for reason, other than or including, PFA failure. And, an effort to upgrade his characterization of service would not be able to hide that fact.

Alan Fowler Law, PLLC - alan@alanfowlerlaw.com - 407 - 221 - 7448. READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state court of Florida. We have not established an attorney-client relationship unless we have a signed representation agreement and you have paid me. I give a 100% effort to get you on the right track with your issue. Sometimes that means legal educational information, sometimes that means counseling and non-legal guidance. You should speak with an attorney to whom you have provided all the facts, before you take steps that may impact your legal rights. I am not obligated to answer subsequent emails or phone calls unless you have hired me. I wish you the best of luck with your situation.

Posted

Regardless of the reason for separation, the Soldier may apply to the Army Discharge Review Board to have his OTH upgraded. The application can be found online at their website.