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NAVY | BCNR | CY2006 | 04760-06
Original file (04760-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-S 100



 S M W
          Docket No: 4760-06
 28 June 2007

From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
         
         Subj : NAVAL RECORD OF   ____     _____

Ref:     (a) 10 U.S.C. 1552
End:     (1) Case Summary
 (2)      Subject’s naval record
1.       Pursuant to the provisions of reference (a), Petition r, a former enlisted member of the United States Marine Corps applied to this Board requesting an upgrade of the other than ho n orable discharge he received on 23 December 1977.
2 The board consisting of Mr , Mr a nd Mr. reviewed Petitioner’s allegations of error and injustice on 26 June 2007, and pursuant to its regulation : i s, determined that the corrective action indicated below sh o uld be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, nav al records, and applicable st atutes, regulations and policies .
3.       The Board, having reviewed all the facts of record pe r taming to Petitioner’s allegations of error and injustice finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.
b.       Although Petitioner’s application was not filed in timely manner, it is in the interest of justice to waive the statue of limitations and review the application on its merits.
c.       Petitioner enlisted in the Marine Corps on 29 Dece mb er 1976 at the age of 17 with parental consent. At that time he Lad completed nine years of education and attained average te s t scores.

d.       On 8 February 1977 Petitioner received nonjudicial punishment (NJP) for sleeping on post.
e.       On 27 May 1977 Petitioner completed cook school and subsequently reported to Okinawa, Japan for duty.

f.       During the period from 26 July to 20 September 197 Petitioner received five NJP’s. His offenses included t o instances of absence from his appointed place of duty, tree instances of disobedience of a lawful order, communicati n g a threat, disrespect, and assault.
g.       On 26 October 1977 Petitioner was assigned as the c ompany
 runner.
h.       On 19 November 1977 Petitioner reached age 18.
1.       On 8 December 1977 Petitioner requested an other t an honorable discharge for the good of the service to avoid trial by court-martial for four instances of insubordination, two instances of failure to obey a lawful order, and two ins t ances of communicating a threat. All of the offenses occurred du r ing October 1977.
j.       On 12 December 1977 the separation authority approved Petitioner’s request for another than honorable discharge for the good of the service to avoid trial by court-martial. On 23 December 1977 he was so discharged.
k.       In his application, Petitioner states that he was diagnosed with attention deficit hyperactivity disorder (ADHD) at a ge 5 and was prescribed Ritalin until 1976. He further states th a t after he enlisted in the Marine Corps, his disciplinary problems increased and he told his first sergeant of his medical co ndition and his need for treatment. He further states that he b e lieves that if he had the proper treatment and care for his medi c al condition, he would have been able to serve in the Mann Corps.
1.       With his application, Petitioner provided a letter from both of his parents. His father, a retired member of the Coast Guard, states that prior to his son’s enlistment, he informed the recruiter that Petitioner had suffered from ADHD since a five and had been taking Ritalin, but the recruiter told him t at it would not be a factor. His parents also believe that the side effects from Petitioner taking Ritalin as a child caused him to have major problems in his adult life.
m.       With his application, Petitioner also provided documents from a school psychologist and elementary school principal dated 18 September 1967 and 28 May 1968, respectively, which st a te that he had severe behavior and learning problems, and was prescribed behavior modifying medication.



n.       Petitioner also provided a psychiatric evaluation, d ated 31 December 2006, which diagnosed him with ADI-ID and state that his history of ADHD was corroborated by Conner’s Adult AD D Rating Scales (CAARS).

CONCLUSION:
Upon review and consideration of all the evidence of record , the Board concludes that Petitioner’s request warrants relief Specifically, the Board believes that Petitioner’s disciplinary actions were proper and his discharge was in accordance w th e regulations. Therefore, separation by reason of good of he service was warranted. However, the Board believed that Petitioner’s untreated medical conditi o n may have contrib u ted to his disciplinary problems after enlistment. Furthermore, the Board considered Petitioner’s age at the time of enlistme n t, his limited education, and the nature of his offenses. The B ard also believes that he would not have been authorized to e list if his medical history had been documented during the enlist m ent processing, and he should have been considered for discha r ge by reason of erroneous enlistment when Petitioner informed h s first sergeant of his medical condition. Therefore, as a matte of clemency the Board concludes that Petitioner’s separation should be changed to a general discharge.
RECOMMENDATION:
a.       That Petitioner’s naval record be corrected to show that he received a general discharge on 23 December 1977, vice th other than honorable discharge actually issued on that date.
b.       That a copy of this Report of Proceedings be filed ‘n Petitioner’s naval record.
c.       That upon request, the Veterans Administration be i formed that Petitioner’s application was received by the Board o
 6 June 2006.
4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.

ROBERT D. ZSALMAN        ALAN E. GOLDSMITH
Recorder         Acting Recorder





5. Pursuant to the delegation of authority set out in Sec ion
6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulation, Section 723 6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken und r the authority of reference (a), has been approved by the Boar on behalf of the Secretary of the Navy.









         W. DEAN PFEIFFER
          Executive Director































4

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