Q. I received an other-than-honorable discharge after a urinalysis came back hot. What can I do to convince a review board to upgrade my discharge?
A. Getting a discharge upgrade — even under those circumstances — isn't easy, but it's possible. One big challenge is differentiating your petition from the hundreds of others that came before, asking for similar relief. This is where having a military law attorney on your side can be pivotal.
The adverse consequences of an OTH can be severe. They include the loss of veterans and education benefits, the loss of veterans preference rights in federal hiring, and the loss of civilian employment protections against military-based discrimination and other violations of the Uniformed Services Employment and Reemployment Rights Act.
As long as the OTH discharge occurred within the past 15 years, vets can appeal to their branch's Discharge Review Board by filing a DD Form 293. Older discharges would have to be reviewed by a Board for Correction for Military or Naval Records.
Packaging can make the difference between success and failure before a review board. It's important to include documentation highlighting such things as the veteran's meritorious service, high marks on evaluations and civic involvement. A personal statement and character letters — when they address the proper issues — also can carry great weight.
One mistake veterans often make is failing to take responsibility for their actions that led to the discharge. Another important component is the legal memorandum drafted by the veteran's attorney that pulls these items together. An experienced military law attorney knows the arguments that will resonate. This memorandum can help differentiate the veteran's application from the pack.
If a veteran's record contained no misconduct other than the positive urinalysis that led to the OTH discharge — and his or her commanders provide positive statements — a review board may find the OTH too harsh. That happened in a 2013 case (No. AR20120023004) when the Army Discharge Review Board upgraded an OTH discharge characterization to "general under honorable conditions."
Due process errors also may prompt a review board to grant relief to a veteran who received an OTH because of a positive urinalysis. For example, if the government's discharge packet notes a positive urinalysis stemming from a substance abuse rehabilitation program evaluation, a board may deem the use of such protected information as wrongful.
That happened in another 2013 case (No. AR20120021628) in which the Army DRB ruled the OTH characterization improper and upgraded it to honorable.
Similarly, results from a command-directed urinalysis cannot be used to support an OTH discharge.
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com.
