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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 34256
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My son received a General Discharge under Honorable Conditions

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My son received a General Discharge under Honorable Conditions Nov 2010. He was an MM3 Navy 'nuke'. In early Nov he was intoxicated outside his apartment off base, and was removed by local police and handed over to his command. (no car involved). He was 'masted' but did not lose any rank.

One day shortly thereafter he was home for the nite and he reported for duty very early the next morning. We live about an hour from his base. He left his duty early & he met w/ our family physician, who referred him to a local psychologist who determined he was suicidally depressed. We were informed to be home to meet with him immediately. Ever since that day, we have suffered an enormous burden of how our son's life has been forever changed.

The next day when he met w/ the ship 'doc' he was hauled off to One West at Balboa and kept for a week. They diagnosed him as alcohol dependent and sent him to SARP to be rehab'd in order to send him back to work. During this time we met with the head chaplain of the base and spoke w/ him numerous times. Altho sympathetic to our own feelings, it appeared to me that his only goal was to get our son back on duty. When our son declined rehab treatment at SARP for religious reasons he was brought before the base Commodore and was told face to face that he would be discharged within 3 days. It took almost 3 weeks. We were told his insurance would not be stripped but they did that the same day leaving him without insurance until we were able to add him to our policy 1 Dec 2010. They also took away his GI Bill.

Now yesterday he received a demand for Bonus Recoupment in an amount over $6000.

After Thanksgiving we sent him abroad to 'clear his mind'. He satyed with family friends for 7 weeks in one location resting and relaxing from his exhausting experience in the Navy. 6 Feb 4 days after arriving at the family home of our former high school exchange student in Italy, our son suffered a psychotic event. The father of the family is an MD and Neurologist. He determined that our son's behavior was so erratic that they had the police capture him when he tried to flee and they had him admitted involuntarily to an Italian Psychiatric Hospital. The psyciatrist there determined he was pyschotic, delusional, halllucinating,etc. I was contacted and flew immediately to be with him and bring him back arriving home heavily medicated on tranquilizers 11 Feb. Blood tests I have confirmed no drugs or alcohol were the cause of his event. I have records of all just mentioned.

Within 3 days of returning with me to our home his behavior became so disturbing we committed him to a local hopsital where he was diagnosed Bipolar 1. He was kept on a 5150 and and a 5250 for 8 nights. To satisfy our own fears of any brain tumor and desiring a second opinion we visited the Amen Clinics in Newport Beach where 2 SPECT scans and psychiatric evaluations confirmed his Bipolar 1 diagnosis and the meds he was taking.

I feel the Navy misdiagnosed his condition, in fact I believe they are the cause of his current condition. He was perfectly fine, a good 3.5 gpa student, very smart, popular, active. After 11 months on sub duty under high stress, severe sleep deprivation, and clastrophobic conditions, he now exhibits a very timid character, unable to focus, unemployed, but he never applied for unemployment benefits. He is accepted at a college in the fall but I fear he is not up to the task of college classes or living away from his quiet home existence for the time being. He is unable to write a coherent 2 pg essay for a scholarship.

His future looks very dim to us right now. He is not able to work at this time we fear. The doctors have told him that he can't take on a stressful job, or a job with night hours or split shifts. And therapuetic medications have been prescribed for the rest of his life. We are also paying for pyschiatric and psychological therapy.

Do we have any recourse? I am wondering if our son should be getting disability benefits of some sort and if we have any claim against the Navy for their misdiagnosis.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Tell me, has your son applied to the VA yet to be evaluated? IF so, what was the result?
Customer: replied 6 years ago.
No, I know nothing about what to do for him. I really hate putting him through any more stressful situations at this very moment. He has been fairly fragile with raw nerves. We are hoping for a whole week without some sort of situation happenning. He has really only been back home for 2 wks yesterday after his latest hospitalization and during that time he has had 8 or more appts w/ various professionals for appts, evaluations, therapy etc. He only seems to be doing pretty well for the last 5 days or so. he has been reluctantly complying w/ his meds Depakote and Zyrpexa.

What you describe, it sounds like he needs medical attention. The VA would be a good place to start. IF they determine that his mental condition is related to his military service? Then he would be eligible for a pension. But unless or until you apply, you can not start that process. You mention disability benefits? The only way to get them is to apply to the VA.

Frankly it will be MUCH easier to get the VA to give him treatment/compensation that it will be to "upgrade" his discharge. OR to try and sue the Navy.

Lets talk suit first. Or, rather, the fact its not possible for him to sue. This is due to a Supreme Court case called Feres v US that holds that its not possible for a vet to sue the govenment for misdiagnosis. The sole recourse is with the VA.

Still, you can apply to have his discharge upgraded (from general to honorable).

The process is straightforward. You can begin the process here

To be successful, you will need to demonstrate, under the circumstances, that an upgrade to the characterization is the appropriate result in your son's case. Typically this would be done by showing that the result at the time was wrong for some reason...for example if there was some error in the process that was not addressed at the time, that would be a basis for upgrade.

If your son can show his mental defect was the reason for his misconduct, that may be grounds to upgrade the discharge from general to honorable.

Unlike the urban legend, there is no "automatic upgrade" for fact only a small percentage of requests are granted.

To have the greatest chance for success you should consider working with an attorney that can help you assemble the package you will submit. A google search under "military lawyer upgrade discharge" will net you several prospects...I would talk to several to see if one can be of help...but understand this is a long shot...beware of promises.

The one thing the lawyer can help with is organizing the information you have to put it into a "package" that will make it easy for the board to see your points. This can be a very valuable service.

Let me know if you have more questions
Customer: replied 6 years ago.

so to your knowledge, understanding it may not be the final answer, when you say the VA might be best for treatment/compensation for a disability, does it mean that treatment can only be obtained at a VA facility once you apply. I am sad to say, that he is feeling very negatively about the Navy in general and I think actually while travelling a couple of people in uniforms really agitated him on trains and elsewhere. I don't think going thru a whole lot more evaluation is healthy for him at this time. He is kind of on overload. We have two US psychiatrists that have confirmed his diagnosis of Bipolar 1 disorder. I'm sure the VA doesn't take someone else's diagnosis, but I wonder what applying to the VA would entail. He didn't even want to apply for would take some convincing to get him to accept a pension if it were even a possibility. I take it you see no way to get out of the bonus recoupment.


He is having trouble just getting the Navy to correct the error of omission of his entire power school portion of his training. He has the original certificate, and he couldn't have gotten where he was without finishing it. Personnel were just completely unsympathetic to doing their job by completing even his smart transcript correctly.

If he wants compensation for his illness, it will have to come from the VA.

There is not really anyways around that.

The bonus can be solved IF you could show that the Navy made a mistake and discharged him in error..,if he can show this, he would be eligible to keep the bonus paid.

But like I explain, this is not an easy thing to do.

And your correct, the fact another doctor has diagnosed will not be the end of the analysis....the VA will need to evaluate him...but they WILL take into account the other diagnosis.

The real issue is if this was caused by or aggravated by his service or not. IF so, then he rates compensation. If not, then not.

Let me know if you have more questions
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