DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
Application for Correction of  
Coast Guard Record of: 
 
XXXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXXX 
    

 
 
 
BCMR Docket  
No.  2002-109 

  FINAL DECISION 

This  final  decision,  dated  February  19,  2003,  is  signed  by  the  three  duly 

 
ULMER, Chair: 
 
 
This  is  a  proceeding  under  the  provisions  of section 1552 of title 10 and under 
section 425 of title 14 of the United States Code.  It was docketed on May 28, 2002, upon 
the Board's receipt of the applicant's request for correction of his military record. 
 
 
appointed members who were designated to serve as the Board in this case. 
 
The  applicant,  XXXXXXXXXXXXXXXXXXXX  asked  the  Board  to  upgrade  his 
 
general discharge under honorable conditions by reason of misconduct to an honorable 
discharge.  He stated that he believed that his discharge should be upgraded based on 
his  post-service  employment  and  accomplishments.    According  to  his  resume,  he  has 
attended  college  and  taken  a  course  in  welding.    He  is  currently  an  employee  for  a 
government  contractor  who  provides  services  to  the  Commander  in  Chief  of  the 
Atlantic Fleet.  He did not provide the date in which he discovered the alleged error.   
 
 
The applicant enlisted in the Coast Guard on April 29, 1985.  He was discharged 
from  the  Coast  Guard  on  July  25,  1986  with  a  general  discharge  under  honorable 
conditions  by  reason  of  misconduct  due  to  drug  abuse.    He  was  issued  a  separation 
code of HKK (misconduct - drug abuse) and a reenlistment code of RE-4 (not eligible for 
reenlistment).    
  
On April 29, 1986, the applicant was awarded non-judicial punishment for use of 
 
cocaine.    His  punishment  included  reduction  in  rate  and  forfeiture  of  $200  pay  per 
month for two months.   
 
 
On May 21, 1986, the applicant's commanding officer (CO) notified the applicant 
that action had been initiated to discharge the applicant from the Coast Guard because 
his urine specimen had tested positive for cocaine during a random screening on April 
4,  1986.    The  applicant  by  his  signature  acknowledged  the  proposed  discharge, 
understood  that  he  would  be  given  a  general  discharge  under  honorable  conditions, 
waived his right to submit a statement and his right to consult with a lawyer, and he 
did not object to the discharge.  The Commandant approved his discharge in July 1986.   

 
Views of the Coast Guard 
 
 
On October 24, 2002, the Chief Counsel submitted an advisory opinion on behalf 
of the Coast Guard.  The Coast Guard recommended that the Board deny the request 
because it was untimely.  An application for correction of a military record must be filed 
within 3 years after the alleged error or injustice was discovered or should have been 
discovered,  unless  the  delay  is  excused  in  the  interest  of  justice.    He  stated  that  the 
applicant  filed  his  application  more  than  12  years  after  the  statute  of  limitations  had 
expired.   
 

The  Chief  Counsel  stated  that  it  is  not  in  the  interest  of  justice  to  excuse  the 
untimely  filing.    In  this  regard,  the  Chief Counsel stated that the BCMR's regulations 
require that an applicant filing an untimely request set forth reasons explaining why it 
is  in  the  interest  of  justice  to  accept  his  application  for  correction.    In  making  a 
determination whether to waive the statute of limitations, the Board must consider the 
reasons  for  the  delay and make a cursory review of the potential merits of the claim.  
Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir 1995).  The Chief Counsel stated 
that  the  applicant  has  failed  to  offer  substantial  evidence  that  the  Coast  Guard 
committed  either  an  injustice  or  error  in  discharging  him  with  a  General  Discharge 
based on misconduct. 
 

The Chief Counsel stated that no one has a right to remain in the armed forces 
unless a specific statute or regulation grants that right.  He said that the applicant was 
accorded  all  of  the  rights  to  which  he  was entitled.  He stated that the applicant was 
provided proper notice, opportunity to consult with legal counsel, and the opportunity 
to  make  a  statement,  which  he  waived.    The  Chief  Counsel  stated  that  absent  strong 
evidence to the contrary, government officials are presumed to have carried out their 
duties correctly, lawfully, and in good faith.  Arens v. United States, 969 F.2d 1034, 1037.     
 
 
The Chief Counsel stated that post-service conduct alone, is an insufficient basis 
on  which  to  upgrade  a  discharge.    See  Department  of  Transportation  Memorandum 
from the General Counsel dated 07 July 1976 "BCMR and 'Clemency'".   
 
 
timeliness or alternatively it should be denied for lack of merit. 
 
Applicant's Response to the Views of the Coast Guard 
 
 
On  October  29,  2002,  a  copy  of  the  views  of  the  Coast  Guard  was  sent  to  the 
applicant for him to submit a response.   No response was received from the applicant.    
 

The  Chief  Counsel  recommended  that  this  application  be  denied  for  lack  of 

FINDINGS AND CONCLUSIONS 

 

1.  The BCMR has jurisdiction over this matter pursuant to section 1552 of title 

 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's  and  Coast  Guard  submissions,  the  military  record  of  the  applicant,  and 
applicable law: 
 
 
10, United States Code.   The application is untimely. 
 
 
2. The applicant had been discharged for approximately 16 years before he filed 
this application with the Board.  To be timely, an application for correction of a military 
record  must  be  submitted  within  three  years  after  the  alleged  error  or  injustice  was 
discovered or should have been discovered.  See 33 CFR 52.22.   
 
 
3.  Untimeliness can be waived if the Board finds that it is in the interest of justice 
to do so.  The Board, in determining whether to waive untimeliness, “should consider 
the reasons for the delay and the plaintiff’s potential for success on the merits, based on 
a cursory review, as factors in the interest of justice analysis.”  See Dickson v. Secretary 
of Defense, 68 F.3d 1396 (D.C. Cir 1995). 
 

5.  Additionally, the Board finds that, based on a review of the evidence in this 

4.    The  applicant  did  not  provide  the  date  on  which  he  discovered  the  alleged 
error, but he should have discovered it on the date of his discharge in 1986.  He failed to 
tell the Board how he discovered the alleged error or why the error could not have been 
discovered within three years after his discharge from the Coast Guard.   
 
 
case, it is unlikely that the applicant would prevail on the merits. 
 
 
6. A cursory examination of the merits indicates that the applicant is not entitled 
to relief.  The applicant did not allege any specific error or injustice on the part of the 
Coast  Guard,  nor  did  he  present  any  proof  that  the  Coast  Guard  had  committed  an 
error or injustice by discharging with a general discharge under honorable conditions 
due  to  misconduct.  According  to  a  1976  General  Counsel  memorandum,  good  post-
service conduct is not a sufficient basis on which to upgrade a discharge.  In addition 
the applicant's military record indicates that he was awarded non-judicial punishment 
for use of cocaine. 
 
7.    Accordingly,  it  is  not  in  the  interest  of  justice  to  waive  the  statute  of 
 
limitations in this case.  The application should be denied as untimely and for failure of 
proof. 
 
 
 
 
 
 
 
 

 

 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 

ORDER 

The application of former XXXXXXXXXXXXXXX, USCG, for correction of 

 
 

 
 
his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 
Julia Andrews 

 

 

 
Gloria Hardiman-Tobin 

 

 

 

 
 
David H. Kasminoff