Q. I received an other-than-honorable discharge after having a urinalysis come back hot. What would I have to do to persuade a Discharge Review Board to upgrade my discharge?
A. Obtaining a discharge upgrade — even after a positive urinalysis that led to an administrative separation — is not easy but is possible. Perhaps one of the greatest challenges veterans face in seeking the upgrade of an other-than-honorable discharge is differentiating their petitions from the hundreds of others that preceded theirs and asked for similar forms of relief. And that's where having a military law attorney on your side can be pivotal.
I cannot stress enough the adverse consequences of an other-than-honorable discharge. There is the loss of Veterans Affairs and education benefits on top of the loss of veterans' preference rights in the federal hiring process and of civilian employment protections against military-based discrimination and other violations of the Uniformed Services Employment and Reemployment Rights Act. So long as the other-than-honorable discharge occurred within the past 15 years, veterans can appeal to their branch's Discharge Review Board by filing a DD Form 293. Discharges beyond 15 years would have to be reviewed by a Board for Correction for Military or Naval Records.
Packaging can make the difference between a successful and unsuccessful application to a Discharge Review Board. It is important to include documentation highlighting things such as the veteran's meritorious services, high marks on evaluations and civic involvement. A personal statement and character letters — when they address the proper issues — can also carry great weight. One mistake veterans often make is failing to take responsibility for their actions that resulted in the discharge. Another important component is the legal memorandum drafted by the veteran's attorney that pulls all of these items together. An experienced military law attorney knows the arguments that will resonate with military minds. This memorandum can help differentiate the veteran's application from the pack.
If a veteran’s record contained no other misconduct other than the positive urinalysis that resulted in an other-than-honorable — and his or her commanders provide positive statements about him or her, a Discharge Review Board may find this discharge characterization to be too "harsh," as the Army Discharge Review Board did in a 2013 case (No. AR20120023004). Consequently, the board upgraded the discharge characterization to general, under honorable conditions.
Due process errors may also prompt a Discharge Review Board to grant relief to a veteran who received an other-than-honorable 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 was what happened in another 2013 Army Discharge Review Board case (No. AR20120021628), prompting the board to find the other-than-honorable characterization improper and upgrade it to an honorable discharge. Similarly, results from a command-directed urinalysis cannot be used to support an other-than-honorable discharge. If a veteran received an other-than-honorable discharge because of a command-directed urinalysis, a Discharge Review Board may upgrade that characterization to general, under honorable conditions, as the Army’s board did in a 2014 case (No. AR20140006762).
Veterans who received an other-than-honorable discharge because of a positive urinalysis should consult with an experienced military law attorney. Depending on the circumstances, an attorney could prepare a DD Form 293 that highlights due process errors or make arguments for relief in the form of a discharge upgrade.
Mathew B. Tully is a veteran of the Iraq and Afghanistan wars and a founding partner of Tully Rinckey PLLC. Email firstname.lastname@example.org. The information in this column is not intended as legal advice.