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If a 17year old Marine is suffering from PTSD and has limited…

If a 17year old Marine...
If a 17year old Marine is suffering from PTSD and has limited comprehension ability (English as a second language), how binding is the signature? Is there a regulation that references this subject? (I'd like to look it up as well).. Thanks.
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10/15/2014
Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 20,882
Experience: Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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Hello,

Thank you for the information and your question, however, I will need a bit of context here. What is it that was signed that the Marine is challenging? Had the Marine signed other documents prior to this that they aren't challenging?
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Customer reply replied 3 years ago

What was signed was a discharge request based on Alienage. This was 1966. The person is Canadian. At the time he went to basic training in Parris Island, he was 17. Basic training was abusive. The language in the home he grew up in was French. He had some issues with abuse by a sibling at the time he joined. For years his older brother had beat him pretty regularly. When the family visited NY for vacation, the Marine recruiting poster sounded pretty good. The Dad signed the release to allow him to join. He went to basic and received a steady diet of above average physical abuse (which was common at the time). He also witnessed severe abuse (like his platoon mates being beaten for the purpose of intimidation to all (it worked); and the Drill Instructor requiring a recruit to first smoke a carton of cigarettes, then eat a soup made of the butts, then eat the vomit that resulted...). Throughout, language comprehension was an issue. It affected the young Canadian's ability to learn, then perform to standard. The problems with performance caused additional ridicule and abuse. He finished basic training, traumatized. He went home on a brief leave. When he returned to Parris Island, he expressed his disillusionment and was told to see the Chaplain. The chaplain said that the thing to do was to request discharge for the reason of alienage. He did that. He had been in the service for less than six months, and could have requested a discharge under a different chapter. He could have also been involuntarily discharged, but wasn't. Part of the procedure for discharge due to alienage was to sign a statement saying that he could, or would surrender future option to get a green card. When he wanted more information, the authority figures in the rooms told him that the only way he was leaving was to sign the paper. He wanted to leave. He signed. Fast forward to now: He is a long term resident of Maine. He is a taxpayer. He built a house. He married my sister-in-law. His grown daughter is a U.S. citizen. But because the post-9/11 rules say that if you're not eligible for a green card, you can't gain citizenship, he has no path. If he changes the chapter under which he left the Marines, he removes the restriction. He has gone through the appeals process, but has been unsuccessful. The argument was not compelling. He appealed. There was no basis for appeal because he did not present new information. I am a career Army officer. When I read some of the details of his experience, three items stuck out for me: 1) He signed a document even though he had language comprehension shortcomings; 2) He was traumatized at the time he signed; 3) He experienced (still?) night sweats, shaking, fear, etc recently, as he relived the experiences of his youth. That sounds like PTSD. So...If a 17-to-18 year-old French Canadian sufferring from PTSD signs a legal document under duress, is there room for challenging the validity of that signature? (The PTSD info sounds to me like it would constitute "new" information, and would be a valid basis for appeal...) Hopefully, my reply adds sufficient clarity. I'll reiterate that when you answer, I'll need you to cite regulatory and legal references so I can reconstruct your arguments.... Thanks

Thank you for your reply, it was helpful. I am, however, going to have to opt out of working on this question as it will require more research, due to the age of the issue, and time than I can devote to it at present. I will open up the question to other Military Law Experts who, hopefully, have the resources to devote to it. No need to reply to my post. Someone will let you know when they have an answer for you. Best of luck in your endeavors.
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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 37,283
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.
Different expert here. Some new questions...
Can you tell me what you mean by
He has gone through the appeals process, but has been unsuccessful.
Has he filed an appeal to the BCNR (board of corrections for naval records)?
P. Simmons
P. Simmons, Military Lawyer
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Customer reply replied 3 years ago

Hi. Phillip. The answer is "yes" to your second question: he filed an appeal w/ BNCR. The first response was: "...after careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.”

He appealed. The response was: "...“As previously explained to you…when a request for corrective action is denied by the Board, sitting in executive session, new and material evidence or other material not previously considered must be submitted in order to have the Board reconsider its decision. After a careful review of your letter I am unable to find any new and material evidence or other matter not previously considered by the Board. Accordingly, I regret to inform you that further review of your case is not warranted and your request for reconsideration must be denied.”

That means to me that the board did not consider the appeal because there was no grounds for considering the appeal. They said, "we deny your request for appeal."

I'm going to call now.

good to speak with you today. Here are some of the issues we discussed.
Application requirements
1. 3 year window. There is a 3 year window to apply to the BCNR to correct a record. The BCNR can waive this requirement if the applicant shows good cause. You will want to address this in your submission (why he waited so long to address this issue)
2. Error or injustice. The board can only address "error" or "injustice". the applicant must argue one or both of these in the application for correction. What you are describing does not seem like "error"...but you may have a good "injustice" argument. Particularly if you can show that the type of discharge he received is no longer being awarded...that would allow you to compare to other policy changes. For example, it used to be that homosexual conduct was a basis for a bad discharge. That is no longer the case...and soldiers who were discharged for such conduct are able to get relief from the board of corrections.
3. Presumption of regularity. This attaches to all claims. Because of this the burden is on the applicant to
demonstrate the existence of probable material error or injustice.
You can see the law that governs the board of corrections here
http://www.law.cornell.edu/uscode/text/10/1552
Now, the current Marine Corps Seps Manual can be seen here
http://www.hqmc.marines.mil/Portals/61/Docs/FOIA/MARCORSEPMAN/MCO%20P1900_16F.pdf
But look here and you can see the revisions back to 1968!
http://www.hqmc.marines.mil/Agencies/USMCFOIA/MARCORSEPMAN.aspx
The one applicable in the mid 80's can be seen here
http://www.hqmc.marines.mil/Portals/61/Docs/FOIA/MARCORSEPMAN/MCO%20P1900_16B.pdf
So take a look at the one that applies when he was separated and see if they got it right..then see if that same provision exists today. If not? That is good argument that he was treated unfarily.
NEW MATERIAL EVIDENCE: You must submit new material evidence to reapply. A diagnosis of PTSD with a letter that states he had this as a young Marine and that led to his separation? That would be new material evidence.
If you wanted to appeal past the BCNR? IT would be with the federal court claims
http://www.uscfc.uscourts.gov/
Finally, you will want to have a VSO assist you...you can find one here
http://www.maine.gov/dvem/bvs/offices.htm
Hope this helps
Let me know if you have questions
Phil
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Customer reply replied 3 years ago

Hi, Phillip,

I've continued to work on this issue and am now at the point where I can follow up with you. Update:

1) I expect that within the next week, my brother-in-law will have a letter from a licensed clinical social worker stating that he was likely suffering from PTSD at time of signature and has continued suffering from that undiagnosed condition for the past 50 years.

2) I've searched through the reference materials and the documents referenced in the regulations and laws. I have been looking for errors. I have some prospects but need some specific help.

Question 1: What do the regulations say about the requirement to bar a service member (SM) from reenlistment (or favorable action) if the SM is in an AWOL status? Reason: At the time of discharge, the SM was in an AWOL status. I believe he should have been involuntarily discharged, rather than granted a discharge for "convenience of the SM." A convenience discharge is a favorable action and should not have been allowed. (I can't find any reference to "bars..." however). Can you speak on the gov requirement for "bar?"

Question 2: Is there a requirement for SMs to receive legal advice prior to signing a request for discharge? The only counsel provided to him was the chaplain and the chain of command. The chaplain is not a legal professional and the chain of command was the abuser. If there is not a regulatory REQUIREMENT, is there a general rule of legal decency that can be applied? (If so, can you send the reference...?) Thx.

That's all for now. I'll stand by for your reply.

P.S.- I was really happy with the quality of your service, and wanted to rate you as excellent. However, I could not find the button to do so at the end of our conversation. Maybe it was a glitch? I may need you to help me comment....!

Let me try and address the questions in order
Question 1: What do the regulations say about the requirement to bar a service member (SM) from reenlistment (or favorable action) if the SM is in an AWOL status? Reason: At the time of discharge, the SM was in an AWOL status. I believe he should have been involuntarily discharged, rather than granted a discharge for "convenience of the SM." A convenience discharge is a favorable action and should not have been allowed. (I can't find any reference to "bars..." however). Can you speak on the gov requirement for "bar?"
That is a problem. That is, while it is true a member can not reenlist while in an AWOL status, it is also true that while in an AWOL status, the member is not earning days towards fulfillment of their contract. While AWOL they are, in effect, in a limbo status...so long as they remain AWOL they are committing misconduct and the days they are gone are technically "bad days" that must be made up to fulfill the contract.
So on return from AWOL the government has a choice. They can do nothing. They can prosecute the misconduct (to include processing for a separation). This decision falls to the commander...the battalion or squadron commander has the final say on how to process soldiers who return from AWOL. This to include allowing a "good discharge"
So I do not think this will help, at least not directly. The commander had the power to separate as they did. HOWEVER, if you look at the action in conjunction with your next question...
Question 2: Is there a requirement for SMs to receive legal advice prior to signing a request for discharge? The only counsel provided to him was the chaplain and the chain of command. The chaplain is not a legal professional and the chain of command was the abuser. If there is not a regulatory REQUIREMENT, is there a general rule of legal decency that can be applied? (If so, can you send the reference...?) Thx.
No...not a requirement. Though this becoming a standard practice. That is, there is not a requirement that a Marine be provided counsel or access to counsel prior to agreeing to sign a document where they agree to waive particular rights. You will not find this in the MARCORPSEPSMAN that was in effect at the time
Now...I did find this
http://www.public.navy.mil/bupers-npc/reference/milpersman/1000/1900Separation/Documents/1910-406.pdf
This is the MILPERSMAN (military personnel manual). It is really geared towards Navy...but will apply for Department of the Navy (which the Marines fall under). It provides in part that a member facing administrative separation has the right to speak to counsel PRIOR to making a decision. I that never happened? That would be an error that could be enough to reverse this (when you combine the PTSD and coercion used by the command)
I would use this provision to argue the point.
As for rating? Done when you agreed to the phone call.
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