DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7769-19 Ref: Signature Date This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 4 January 2021. The names and votes of the panel members will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of the Board. Documentary material considered by the Board consisted of your application together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). You enlisted in the Marine Corps and began a period of active duty on 3 October 1969. Six months after graduating from infantry training, you arrived in where you served one year in support of operations in. You earned the Combat Action Ribbon, and participated in Operation. Following your service in Vietnam, you were assigned to. In March 1972, you reported to NAS. On 6 June 1973, you were promoted to the rank of sergeant. On 4 September 1973, you stole a Harley Davidson Super Glide Motorcycle, which was valued at about $1,700 and belonged to a Marine Corps Sergeant. On 12 September 1973, you were arrested by civilian police and charged with appeared in sentenced you to confinement for six months. On 5 November 1973, you submitted a request to the Commandant of the Marine Corps for an Administrative Discharge from the Marine Corps for the good of the service. You stated that your request was based on violating Article 121 of the Uniform Code of Military Justice, specifically stealing the Harley Davidson Super Glide Motorcycle. You acknowledged that your misconduct rendered you triable by court-martial and that the maximum permissible punishment for such offenses included a bad conduct discharge. Before submitting the request, you consulted with counsel, Lieutenant U.S. Navy Reserve. On 20 December 1973, Commanding Officer, recommended that due to the civilian conviction, you should be discharged with an undesirable discharge. The Commanding Officer’s recommendation letter noted that you consulted with defense counsel and that you could be processed on the basis of misconduct, but stated that you should be processed for the good of the service. On 7 January 1974, the Commandant of the Marine Corps directed that you be discharged for the good of the service. You were discharged from the Marine Corps on 25 January 1974, on the basis of Paragraph 6021 of the Marine Corps Separation and Retirement Manual, and received an other than honorable discharge and a reentry (RE) code of RE-4. Following your discharge, you petitioned the Naval Discharge Review Board (NDRB) for a change to your record; on 20 September 1975, NDRB notified you that it found that no change, correction or modification should be made in your discharge. On 18 March 1982, NDRB notified you that it again found your discharge proper as issued. NDRB notes read that you stated that “two weeks before my military discharge date I was placed on Legal Hold for possession of a stolen vehicle.” However, NDRB found that you were properly discharged on 25 January 1974, to escape trial by court martial. In your application to the Board, you request an upgrade from an other than honorable discharge to an honorable characterization of service, and all other relief as appropriate. You submit a brief in support of your application in which you contend that you were wrongfully held past your end of active duty obligated service (EAOS) of 2 October 1973, and you assert that you should have received an honorable discharge rather than the other than honorable. You state that you were not charged by the Marine Corps and you were not referred to Court Martial. You also contend that you were not notified of administrative discharge proceedings, nor were you involuntary extended beyond your EAOS. In your application to the Board, you describe your childhood, your enlistment in the Marine Corps, and your marriage to your girlfriend at a young age. You state that when you returned from, you discovered that your wife was pregnant with another man’s child. Your application to the Board asserts that the combination of just returning from a one-year combat tour and discovering your spouse’s infidelities was emotionally traumatic. You state that you suffered for several years from mental health issues due to this. You contend that on 4 September 1973, you had an isolated lapse of judgment when you took home a motorcycle that did not belong to you. You state that this was an impulsive bad decision that you have regretted the rest of your life. You note that you were arrested by local police but released to military authorities the same day with no lost time. You claim that the end of your contractual obligation was 2 October 1973, and that you were not charged by the Marine Corps or placed on legal hold. You also state that since your departure from the Marine Corps, you remarried, have been married to your wife for 40 years, and have become very involved with your church. You earned an Associates degree, a Bachelors degree, and worked for the City of for 32 years before retiring in 2009. On 11 October 1989, you received a full pardon from the State of for wrongfully acquiring a motorcycle in 1973. The Board noted that your application for correction raises a potential issue of a mental health condition due to your one-year deployment to and the emotional impact of returning home to find your wife had been unfaithful. In a communication dated 13 November 2019, you were asked to provide additional medical or clinical evidence to support your claim. You provided a response dated 13 January 2020, in which you clarified that you are not seeking relief due to a mental health condition that existed prior to your active duty service; you noted that you are seeking an upgrade due to what you experienced during your time on active duty. You again contend that you were wrongfully held beyond your EAOS, unjustly discharged with an undesirable, and should have received an honorable characterization of service. As part of the review process, a Licensed Clinical Psychologist reviewed your request and issued an Advisory Opinion dated 13 November 2020. The Advisory Opinion noted that your available records do not contain direct or indirect evidence of a diagnosis of a mental health condition and that you did not present evidence of a post-service mental health diagnosis. The Advisory Opinion noted that although the infidelity of a spouse can induce emotional turmoil, you did not present evidence suggesting that you met the criteria for a mental health condition. The Advisory Opinion concluded that based on the available evidence, the preponderance of available evidence does not support the contention that you suffered from a mental health condition at the time of your military service or that your in-service misconduct could be attributed to a mental health condition. The Advisory Opinion was provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo, the Hagel Memo, and the Kurta Memo. These included, but were not limited to your contentions that you were not given proper notice of the administrative separation proceedings against you, that you were wrongfully held beyond your EAOS without being placed on legal hold, that you were impacted by the emotional trauma of the combination of the one-year combat tour in and your former spouse’s infidelity, and that you made a singular lapse in judgment for which you have since received a pardon from the State of. With regard to considering whether the emotional trauma of your deployment and your personal circumstances mitigated the misconduct of stealing a fellow Marine’s motorcycle, the Board concurred substantively with the findings of the Advisory Opinion. The Board determined that based on the available in-service records, there is insufficient information on which to find that your misconduct was mitigated by a mental health condition. When considering your assertion that you were not afforded the appropriate notice of the administrative separation proceedings against you and your claim that you were wrongfully held beyond your EAOS without being placed on legal hold, the Board noted that your service record does not support this assertion. Nonetheless, the Board noted that after your September 1973 arrest, you consulted with a judge advocate, appear to have been detailed a defense counsel (as per the language in the Commanding Officer’s 20 December 1973 Request for Discharge for the Good of the Service letter), and stated to the NDRB that you were placed on legal hold. The Board reviewed your letter of 5 November 1973, which referenced that you were afforded the opportunity to consult with counsel, were counseled by Lieutenant , JAGC, and that you were entirely satisfied with his advice. After consulting with counsel, you submitted your Request for Discharge for the Good of the Service; this request is dated 5 November 1973, more than one month after your October 1973 EAOS. Additionally, the Board noted that your Certificate of Release or Discharge from Active Duty (DD Form 214), block 11c, “Reason and Authority” references Paragraph 6021 Marine Corps Separation and Retirement Manual. Paragraph 6021 pertains to separation based on an individual’s request to the GCM authority to escape trial by court martial. The Board applied the presumption of regularity and found that despite specific documentation referencing your legal hold, your 5 November 1973 request, the reference to defense counsel in your Commanding Officer’s recommendation, your DD Form 214’s citation of a request for discharge to escape trial by court martial, and the information in the NDRB review are sufficient to establish that you were properly placed on legal hold and held on that legal hold beyond the October 1973 EAOS. Also, the Board noted that your 5 November 1973 request for an administrative discharge acknowledged that if your request was accepted, you would receive an undesirable discharge without referral to or consideration by an Administrative Discharge Board. Accordingly the Board found that the Marine Corps’ acceptance of your voluntary request for an undesirable discharge to escape trial by court martial was a proper basis for the undesirable discharge, and that your record did not reflect an error or injustice with respect to the administrative discharge proceedings. Finally, the Board noted that you were pardoned by the State of for your 1973 conviction relating to the motorcycle theft, and you have made significant contributions to your community since your release from active duty. The Board also took into account your personal achievements to include your family life, continuation of your education, and your commitment to your church. The Board weighed your positive contributions to the Marine Corps, to include your time in , and the fact that the theft of the motorcycle was an isolated incident. Even taking into consideration the mitigating factors raised in your application, the Board found that the seriousness of the theft of a motorcycle from a fellow Marine was such that the other than honorable discharge was warranted. The Board concluded that your other than honorable discharge was issued without error or injustice, and does not merit corrective action. You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. Sincerely, Director Signed by: