DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-026 
 
XXXXXXXXXXXX 
xxxxxxxxxxxxx, SN (former)  
   

 

 
 

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 November 18, 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  July  28,  2005  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  upgrade  her  1986  general  discharge  under 
honorable  conditions  (general  discharge)  by  reason  of  misconduct  to  an  honorable 
discharge.  She stated that she would like to receive educational benefits but the general 
discharge prevents her from doing so.  The applicant's DD Form 214 indicates that she 
contributed to the Post-Vietnam Era Veterans Educational Assistance Program (VEAP).  
She stated that she is currently involved with many civic programs through her church 
and  employer,  and  that  a  college  degree  would  enhance  her  ability  to  serve  the 
community.    
 
 
the character of her discharge until October 1, 2004.   
 

The applicant indicated that she did not discover the alleged error with respect to 

SUMMARY OF THE MILITARY RECORD 

 

On July 25, 1983, the applicant enlisted in the Coast Guard for a period of four 

On July 25, 1983, the  applicant signed a statement in which  she acknowledged 

 
years.   
 
 
the following:   
 

I have been advised that the illegal use or possession of drugs constitutes 
a  serious  breach  of  discipline,  which  will  not  be  tolerated.    Also,  illegal 
drug use or possession is counter to esprit de corps, mission performance 
and jeopardizes safety.  No member will use, possess or distribute illegal 
drugs or drug paraphernalia."  

On  September  10,  1986,  a  laboratory  report indicated  that  the  applicant's  urine 

 
 
had tested positive for cocaine.   
   
 
On  October  6,  1986,  the  applicant's  commanding  officer  (CO)  notified  the 
applicant that action had been initiated to discharge her from the Coast Guard with a 
general discharge because her urine specimen had tested positive for cocaine during a 
base-wide  screening. 
  The  applicant  acknowledged  by  signature  the  proposed 
discharge, the right to consult with a lawyer, and the right to submit a statement in her 
own  behalf.    She  also  acknowledged  that  the  CO  recommended  that  she  receive  a 
general discharge under honorable conditions.  
 
In her statement objecting to the discharge, the applicant asked to remain in the 
 
Coast Guard.  She stated that if retained she would voluntarily seek rehabilitation and 
gladly  take  on  extra  duties  as  a  rehabilitation  counselor  for  any  future  problems  that 
may arise for other Coast Guard personnel.   
 
 
On  October  7,  1986,  the  applicant  was  taken  to  captain's  mast  (non-judicial 
punishment)  for  the  illegal  use  of  drugs  based  on  her  urine  specimen  that  tested 
positive for cocaine. Her punishment included a reduction in rate from pay grade E-4 to 
E-3 and forfeiture of $250 pay for one month. 
 
On October 22, 1986, the Commandant directed that the applicant be discharged 
 
with  a  general  discharge  due  to  misconduct,  with  a  HKK  (misconduct-drug  abuse) 
separation code and an RE-4 (not eligible for reenlistment) reenlistment code.   
 

 

VIEWS OF THE COAST GUARD 

 
 
On  April  15,  2005,  the  Judge  Advocate  General  (JAG)  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, the JAG stated that an application for correction of 
a military record must be filed within three years after the alleged error or injustice was 
or  should  have  been  discovered,  unless  the  delay  is  excused  in  the  interest  of  justice.  
He stated that the applicant filed her application more than 14 years after the statute of 
limitations had expired.   
 

The  JAG  stated  that  it  is  not  in  the  interest  of  justice  to  excuse  the  applicant's 
untimely filing.  In this regard, the JAG 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).  The JAG argued that the 
applicant's statement that she did not discover the alleged error until October 1, 2004, is 
not  credible  because  the  evidence  of  record  shows  that  she  was  well  aware  of  the 
characterization  of  her  discharge  and  submitted  a  statement  in  her  behalf  seeking  to 
remain in the Coast Guard.  Moreover, he argued that she should have discovered the 
alleged error on the DD Form 214 when it was issued to her in 1986.   

 
With  respect  to  the  merits  of  her  application,  the  JAG  argued  that  she  has 
presented no evidence that the Coast Guard erred in characterizing her service as it did, 
and  instead  relied  on  unsupported  assertions  that  she  is  a  community  activist.      The 
JAG  stated  that  the  applicant  violated  the  core  values  of  the  Coast  Guard  by  using 
illegal  drugs  and  did  not  complete  her  obligated  service  honorably.    The  JAG 
concluded:  "It  is  not  in  the  interest  of  justice  to  waive  the  statutory  three-year  filing 
deadline in this case." 
 

APPLICANT RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  April  6,  2005,  a  copy  of  the  views  of  the  Coast  Guard  was  sent  to  the 

 
 
applicant for a reply.  The BCMR did not receive a response from the applicant.  
 

FINDINGS AND CONCLUSIONS 

 
 
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. 
 

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

 
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);  Allen  v.  Card,  799  F. 
Supp. 158, 164 (D.D.C. 1992).  
 

4.  The applicant's application was submitted approximately 14 years beyond the 
statute of limitations. The applicant alleged that she did not discover the alleged error 
until October 1, 2004.  However, in light of the fact that the general discharge was listed 
on  her  DD  Form  214,  which  she  signed  at  the  time  of  her  discharge,  and  her 
acknowledgement that her CO had recommended that she receive a general discharge 
prior to her discharge, the Board is persuaded that the applicant discovered or should 
have discovered the alleged error at the time of her discharge in 1986.  
 
 
5.  Due to the length of the delay and the lack of persuasive reasons for not filing 
her application sooner, the Board is required to conduct only a cursory review of the 
merits  of  this  claim  in  deciding  whether  to  waive  the  statute  of  limitations.    In  this 
regard, the Court stated in Card that the longer the delay has been and the weaker the 
reasons are for the delay, the more compelling the merits would need to be to justify 
conducting a full review of the case.  See Allen v. Card at 164-165.  Based on a cursory 
review, the Board finds the merits of the claim insufficient to justify waving the statute 
of limitations.  The applicant did not allege any specific error or injustice on the part of 
the Coast Guard.  Nor did she present any proof that the Coast Guard had committed 
an  error  or  injustice  by  discharging  her  with  a  general  discharge  due  to  misconduct.  
Moreover, there is sufficient evidence in the record to support her general discharge by 
reason of misconduct.  After being warned about the use of illegal drugs upon her entry 
into the Coast Guard, the applicant's urine tested positive for cocaine for which she was 
punished at captain's mast.   Under Article 12-B-18.b.(4) of the Personnel Manual, the 
applicant could receive no higher than a general discharge for a discharge by reason of 
misconduct (drugs).     
  
 
6.  Accordingly, due to length of the delay, the unpersuasive reason for not filing 
her application sooner, and the probable lack of success on the merits of her claim, the 
Board finds that it is not in the interest of justice to waive the statute of limitations in 
this case and it should be denied because it is untimely. 
 
 
 

 
 
 
 
 

 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 

ORDER 

The application of former SN xxxxxxxxxxxxxxxxxx, USCG, for correction 

 
 

 
 

 
 

        

 
 
 David Morgan Frost 

 

 

 
 Patrick B. Kernan 

 

 

 
 Audrey Roh 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
of her military record is denied.