While you are still in the Navy:

1) Stay Out Of Trouble

The biggest mistake that Sailors make when they are told they are being kicked out of the Navy (often with an “OTH”) is to throw in the towel and engage in additional misconduct.  

I represented an officer who tested positive on a urinalysis.  He was so upset about the result, that he actually went out
and got high after Mast.  And then he tested positive on a second urinalysis that was given a few days after MAST!  When I looked at the first urinalysis, there were lots of issues with the collection procedure and testing.  But the second one was good (and my client had admitted he used drugs to his XO on the second test).  Had he just stayed out of trouble, he would likely still be in the Navy!

 2) Don’t Make Any Statements

Remember, even if you did do what they say you did, it doesn’t mean they have the evidence needed to kick you out of the Navy.  The Navy must have evidence to prove by a preponderance (51%) that you violated the MILPERSMAN section (the basis for separation) that they are using to administratively separate you – whether it be a positive drug
test, a DWI, or other serious offense.  You have the right under Article 31(b) to remain silent and refuse to answer any questions at any time – during the investigation, Captain’s Mast, and administrative separation processing.  If they don’t have the evidence, you stay Navy.

 3) Don’t Complete The Adsep Paperwork Without Speaking To A Lawyer

You should hire a civilian lawyer to help you immediately after you figure out that your career is in trouble.  Her is why I recommend a civilian lawyer:

1. Most civilian lawyers (check to make sure the lawyer has substantial military law experience, i.e. achieved at least the paygrade of O4 before leaving the military) are more experienced and more accessible.  If you seek defense legal advise on base, be prepared to wait and then you will speak to a JAG lawyer often with less than two years experience and only a handful of cases under their belt.

2. A paid, civilian lawyer is only concerned about you – their client.  There are no concerns about fitness reports or evaluations.  There are no concerns about getting the case over with so a PCS can occur.  A paid, civilian lawyer isn’t going to take the same old template send to the same commander the month before (and that resulted in a loss) and change the name.

3.  JAG defense lawyers won’t form an attorney-client relationship with you or dig in unless you elect a board.  The reality is that many Sailors are not entitled to an administrative separation board or it may not be in his or her best interest to elect one.  In that case, there is no “representation” by the JAG defense office.  In short, they get paid to give the same advice and assistance that Korody Law gives during our fee case consultation.

If you receive Navy administrative separation paperwork, your command MUST GIVE YOU TWO BUSINESS DAYS to complete the adsep paperwork.  Don’t elect your rights or return the form until you have a lawyer look at it to make sure that you have completed the paperwork correctly and elected all the rights to fight for your career.

4) Don’t Waive Anything

Command legal officers are worse than used car dealers – they will tell you the
benefits of waiving everything to get out of the Navy as soon as possible.  Don’t be fooled, and don’t be shortsighted.  You get one shot to fight against being kicked out of the Navy, and if you waive your rights, you never get those rights back.  The best time to fight your discharge and fight for an Honorable discharge is while you are still in the Navy!   Also, THERE IS NO AUTOMATIC DISCHARGE UPGRADE.   Not in six months.  Not in a year.  Never.  There is a process to apply for a discharge upgrade, but less than 5% of applications for discharge upgrades are approved each year.