DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-074 
 
XXXXXXXXXXXXXXXXXXXXX  
   

 

 
 

FINAL DECISION 

 
Author: Ulmer, D.  
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title  10  and  section  425  of  title  14  of  the  United  States  Code.    The  application  was 
docketed  on  February  19,  2004,  upon  receipt  of  the  applicant’s  completed  application 
and military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated October 28, 2004, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  upgrade  his  General  Discharge  Under 
Honorable Conditions by reason of misconduct to an Honorable Discharge.  He stated 
that there was no error or injustice in his record.  However, he stated that he suffered 
from chronic alcoholism and drug addiction while on active duty and that he continues 
to  suffer  from  these  conditions  today.    He  asserted  that  the  alcoholism  and  drug 
addiction  had  a  negative  impact  on  his  performance  and  behavior while in the Coast 
Guard.  He stated that he has completed several drug and alcohol treatment programs 
sponsored  by  Department  of  Veterans  Affairs  (DVA),  and  that  he  is  currently 
participating in a DVA program for the homeless.  He stated that having his discharge 
upgraded would greatly improve his self-esteem.      
 

SUMMARY OF THE MILITARY RECORD 

On January 14, 1980, the applicant enlisted in the Coast Guard.   

 

 
 

 
On  April  14,  1981,  the  applicant  received  non-judicial  punishment  (NJP)  for 
wrongfully  possessing  a  "bong  pipe  having  marijuana  residue."  His  punishment 
included  forfeiture  of    $250  pay  per  month  for  two  months  and  a  reduction  in  rate 
(suspended for 30 days).  
 
 
On  February  1,  1983,  the  commanding  officer  (CO)  held  a  health,  safety,  and 
welfare inspection of unit personnel that required each person to give a urine specimen 
to be tested for the presence of illegal drugs.  The applicant's urine tested positive for 
marijuana.    On  February  18,  1983,  the  applicant's  urine  specimen  was  retested  for 
confirmation  of  the  positive  marijuana  finding.    The  retesting  confirmed  that  the 
applicant's urine contained THC, a marijuana metabolite.   
 
 
On March 15, 1983, the applicant received NJP for the illegal use of drugs based 
on his positive urine specimen. His punishment included a reduction in rate by one pay 
grade and forfeiture of one-half month's pay for two months.   
 
 
On March 16, 1983, the CO informed the applicant that he had initiated action to 
discharge the applicant from the Coast Guard because he had been involved in a second 
drug incident.  The CO advised the applicant that he could submit a statement in his 
own  behalf,  he  could  disagree  with  the  CO's  recommendation  for  discharge,  and  he 
could consult a lawyer.    
 
 
On March 18, 1983 the CO sent the Commandant a message recommending that 
the  applicant  be  discharged  because  of  his  involvement  in  two  drug  incidents.    In 
addition,  the  CO  stated  in  the  message  that  the  applicant  did  not  desire  to  make  a 
statement, did not desire to consult with a lawyer, and did not object to the discharge.  
(There is no  signed statement from the applicant in his military record waiving these 
rights.) 
 
 
On April 1, 1983, the Commandant ordered the applicant to be discharged under 
Article  12-B-18  of  the  Personnel  Manual  with  a  General  Discharge  by  reason  of 
misconduct with a HKK (drug abuse) separation code.   
 
On May 6, 1983, the applicant was discharged from the Coast Guard as directed 
 
by  the  Commandant.    He  was  also  given  an  RE-4  (not  eligible  for  reenlistment) 
reenlistment code. 
 

VIEWS OF THE COAST GUARD 

 
 
On  May  27,  2004,  the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard 
submitted an advisory opinion and recommended that the Board deny the application 
because of untimeliness or lack of proof.   
 

 
With respect to untimeliness, TJAG stated that an application for correction of a 
military record must be filed within three 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 17 years after the 
statute of limitations had expired.   
 

TJAG stated that it is not in the interest of justice to excuse the untimely filing.  In 
this regard, TJAG 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 for the 
BCMR 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).    TJAG  argued  that  the  applicant  offered  no 
justification for not filing his application sooner and admitted that the Coast Guard did 
not commit any error or injustice by discharging him with a General Discharge based 
upon misconduct.  "In sum, Applicant offers no substantive reason for his seventeen-
year delay in taking action, and [he] lacks any reasonable chance of prevailing on the 
merits [of his application].  It is not in the interest of justice to waive the statutory three-
year filing deadline in this case." 
 
Applicant's Response to the Views of the Coast Guard 
 
 
for a reply, but none was received.  
 

On June 1, 2004, a copy of the views of the Coast Guard was sent to the applicant 

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.  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.  However, the Board may still consider an untimely application on the merits, 
if it is in the interest of justice to do so.  In deciding whether it is in the interest of justice 
to waive the statute of limitations, the Board should take into consideration the length 
and reason for the delay and the likelihood of the applicant's success on the merits.  See 
Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir 1995). 

 

4.  The applicant's application was submitted approximately 17 years beyond the 
statute of limitations.  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 1983.  
He  did  not  deny  that  he  was  aware  of  the  General  Discharge  Under  Honorable 
Conditions at the time of his discharge. Further, the applicant's explanation for why it is 
in  the  interest  of  justice  to  waive  the  statute  is  not  persuasive.    In  this  regard,  the 
applicant asserted that it would be in the interest of justice for the Board to waive the 
statute and consider his untimely application on the merits because having his General 
Discharge  Under  Honorable  Conditions  upgraded  to  an  Honorable  Discharge  would 
improve his self-esteem.   
 
 
5.  Although, the Board is not persuaded by the applicant's reason for not filing 
his  application  sooner,  the  Board  must  also  consider  the  likelihood  of  the  applicant's 
success on the merits of his claim in deciding whether the statute of limitations should 
be waived.  Based on a cursory review of the evidence in this case, it is unlikely that the 
applicant will prevail on the merits of his claim.  In this regard, 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 him 
with a General Discharge under Honorable Conditions due to misconduct.  Moreover, 
evidence  in  the  applicant's  military  record  supports  his  General  Discharge  Under 
Honorable Conditions by reason of misconduct.  The applicant was punished on two 
occasions for involvement with drugs while on active duty:  once for possession of drug 
paraphernalia and drug residue and once for drug use.  Under Article 12-B-18b.(4) of 
the Personnel Manual the applicant could receive no higher than a General Discharge 
Under Honorable Condition for a discharge by reason of misconduct (drug abuse).     
 
 
6.    Although  the  military  record  does  not  contain  a  signed  statement  from  the 
applicant waiving his right to make a statement, his right to object to the discharge, or 
his right to consult with a lawyer, the Board is  satisfied that he  was advised of these 
rights in a letter from the CO dated March 16, 1983.  In addition, the applicant does not 
allege that he was denied any of his due process rights.    
 
 
limitations in this case.  The application should be denied.  
 
 
 
 
 
 
 
 

7.    Accordingly,  it  is  not  in  the  interest  of  justice  to  waive  the  statute  of 

 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 

ORDER 

The  application  of  former  XXXXXXXXXXXXX,  XXXXXXXXX,  USCG,  for 

 

 

 

 

 

 

 

 

 

 
 

 
 

 

 
 Quang D. Nguyen 

 

 
 

 
 

 
 
correction of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                         Dorothy J. Ulmer 
 
 

 
 
 Adrian Sevier