Ask the Lawyer: Other-than-honorable discharge will limit veteran’s job protections - Military Law, Military Law Advice, Ask a Lawyer - Navy Times

Ask the Lawyer: Other-than-honorable discharge will limit veteran’s job protections

Q. I am being separated under other-than-honorable conditions. Will this hurt my job prospects when I re-enter the civilian workforce?

A. Service members forfeit many protections and rights when they are separated under other-than-honorable conditions. So it might be worth seeking an upgraded discharge on appeal. More on that later.

One of the most important benefits they lose is their preference in the federal hiring process. Under the Veterans Employment Opportunity Act, veterans who meet certain criteria — which includes discharge under honorable conditions — are afforded extra points on their examinations for competitive service positions.

Similarly, veterans must have been separated under honorable conditions to be appointed to federal agency positions without competition under the Veterans’ Recruitment Authority.

Without the benefits of federal hiring preferences, veterans with an OTH may turn to the private sector for employment, but they may find themselves vulnerable.

The Uniformed Services Employment and Reemployment Rights Act provides veterans employment and re-employment rights and protects them against discrimination on the basis of military service. However, service members lose their USERRA protections when they are separated under other-than-honorable conditions. This law applies to both public- and private-sector employers.

Veterans who do find work at a federal agency or contractor may have difficulty advancing their career because an OTH will make it harder for them to obtain a security clearance.

However, during the adjudication process an attorney could raise mitigating factors, such as passage of time, to convince an administrative judge the applicant is trustworthy and should be granted a clearance.

Lastly, an OTH discharge would prevent a veteran from re-entering the service. With their job options looking bleak, veterans may want to consider pursuing a discharge upgrade from a Discharge Review Board or a Board for Correction of Military Records.

Generally, as long as they were separated within the past 15 years, veterans can pursue the former by filling out an Application for Review of Discharge from the Armed Forces of the United States (DD Form 293). They can pursue the latter by filling out an Application for Correction of Military Record (DD Form 149) within “three years since the alleged error or injustice was discovered.”