DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-128 
 
XXXXXXXXX. 
Xxx xx xxxx,  SN/E-3 (former) 
   

 

 

FINAL DECISION 

 
AUTHOR:  Hale, D. 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on June 24, 2005, upon the 
BCMR’s receipt of the applicant’s completed application for correction. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  April  5,  2006,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The  applicant,  a  former  seaman  (SN;  pay  grade  E-3)  who  served  a  little  more 
 
than one year in the Coast Guard, asked the Board to correct his record by upgrading 
his 1988 discharge (general, under honorable conditions) to honorable.  The applicant 
did not provide any reasons why his discharge should be upgraded, nor did he explain 
why he delayed filing his application. 
 

SUMMARY OF THE RECORD 

 

The applicant enlisted in the Coast  Guard on August 11, 1986.   On August 19, 
1986,  he  signed  a  page  71  entry  acknowledging  that  he  had  been  provided  a  full 
explanation of the Coast Guard’s drug and alcohol abuse program.  After completing 
recruit  training  he  was  assigned  to  the  Coast  Guard  Cutter  Venturous.    During  his 
abbreviated  enlistment,  the  applicant  received  numerous  negative  page  7s  and  was 
disciplined on several occasions for a variety of offenses.   
                                                 
1 A CG-3307 (Administrative Remarks, or Page 7) entry documents any counseling that is provided to a 
service member as well as any other noteworthy events that occur during that member’s military career. 

 
On May 10, 1987, a page 7 entry was made in the applicant’s record noting his 

continued pattern of lateness.   

 
On  June  10,  1987,  the  applicant  received  non-judicial  punishment  (NJP)  for  an 

unauthorized absence.   

 
On December 23, 1987, Coast Guard Training Center (TRACEN) Petaluma sent a 
message  to  the  Commandant  of  the  Coast  Guard  requesting  that  the  applicant  be 
transferred  to  a  permanent  duty  station.    The  message  noted  that  the  applicant  was 
counseled in May 1987 about his continued tardiness and the effect an NJP would have 
on his eligibility for “A” school.  

 
On January 7, 1988, a page 7 was placed in the applicant’s record documenting 

counseling about his failure to report to work on time. 

 
On January 14, 1988, the applicant was notified that he had written several bad 
checks and that the Coast Guard Pay and Personnel Center would collect that money 
from his pay.    

 
On January 20, 1988, the applicant underwent a psychiatric evaluation following 
a  failed  suicide  attempt  by  drug  overdose.    The  examining  psychiatrist  noted  in  the 
evaluation  that  the  applicant  had  a  personality  disorder  but  that  he  still  met  the 
retention standards and that there was no psychiatric disease or defect which warranted 
further examination. 

 
On  January  21,  1988,  TRACEN  Petaluma  sent  a  message  to  the  Commandant 
indicating that the applicant had admitted to drug use and had also committed several 
other  UCMJ  (Uniform  Code  of  Military  Justice)  violations,  which  were  under 
investigation.    The  message  noted  that  the  applicant  would  likely  be  processed  for 
discharge.  

 
On  January  22,  1988,  the  applicant  was  disenrolled  from  the  Subsistence 
Specialist “A” school for having made sexually derogative comments to the women in 
his class and for writing more than $5,000 in bad checks within three months. 

 
On January 28, 1988, the Commandant directed that the applicant be discharged 
due  to  misconduct  (drug  use)  in  accordance  with  Article  12.B.18.  of  the  Coast  Guard 
Personnel  Manual.    The  Commandant  directed  that  the  applicant  receive  a  general 

discharge,  SPD  Code  HKK,2  and  that  the  narrative  reason  for  discharge  be  listed  as 
“misconduct.” 

 
On February 2, 1988, a page 7 was placed in the applicant’s record documenting 
counseling about his failure to pay a $2,030 phone bill he incurred while  staying at a 
friend’s home. 

 
On  February  4,  1988,  the  applicant  was  discharged  from  the  Coast  Guard 
pursuant  to  Article  12.B.18.  of  the  Coast  Guard  Personnel  Manual.    He  received  a 
discharge “under honorable conditions,” a separation code of HKK, and “misconduct” 
as his narrative reason for separation.  The record indicates that the applicant received 
an RE-4 reenlistment code (ineligible to reenlist).  He had served in the Coast Guard for 
one year, five months, and twenty-four days. 

 
On  June  18,  1991,  the  applicant  requested  a  copy  of  his  DD  214  and  medical 
records  from  the  National  Personnel  Records  Center  (NPRC).    On  July  19,  1991,  the 
applicant  submitted  a  letter  to  the  Commandant  of  the  Coast  Guard,  wherein  he 
requested an upgrade of his reenlistment code so he could enlist in the Army or Marine 
Corps.  The record also contains a letter from the NPRC to the applicant dated October 
8,  1991,  indicating  that  it  sent  the  applicant  a  copy  of  his  DD  214  and  his  medical 
records. 
 

VIEWS OF THE COAST GUARD 

 
 
On  November  7,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  in  which  he  adopted  the  findings  of  the  Coast  Guard 
Personnel  Command  (CGPC)  and  recommended  that  the  Board  deny  the  applicant’s 
request.  The JAG argued that the applicant failed to submit a timely application, failed 
to show why it was in the best interest of justice to excuse the delay, and failed to meet 
his  burdens  of  production  and  persuasion.    CGPC  recommended  denial  because  the 
character of service (general, under honorable conditions) listed on the applicant’s DD 
214  is  consistent  with  Coast  Guard  policy  and  the  applicant  was  discharged  after  he 
admitted to drug use.    
 
  
The JAG also noted that the applicant offered no explanation or justification for 
his alleged delay in discovering the alleged “error” or in filing his application with the 
Board.    The  JAG  noted  that  in  determining  whether  it  is  in  the  interest  of  justice  to 

                                                 
2 HKK is used to denote an involuntary discharge directed in lieu of further processing or convening of a 
board when a member commits drug abuse, which is illegal, wrongful, or an improper use, possession, 
sale, transfer or introduction on a military installation of any narcotic substance, marijuana or controlled 
substance,  as  established  by  21  U.S.C.  812,  when  supported  by  evidence  not  attributed  to  urinalysis 
administered  for  identification  of  drug  abusers  or  to  a  member’s  volunteering  for  treatment  under  the 
drug identification and treatment program.  SPD Code Handbook, page 2-56. 

waive  the  time  limitations  on  applications,  this  Board  must  “consider  the  reasons  for 
delay and the plaintiff’s potential for success on the merits, based on a cursory review. . 
.  .  “    Allen  v.  Card,  799  F.  Supp.  158,  166  (D.D.C.  1992).    The  JAG  further  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 (1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On November 9, 2005, the BCMR sent the applicant a copy of the views of the 
Coast Guard and invited him to respond within 30 days.  The letter was returned to the 
BCMR  on  January  23,  2006,  marked  by  the  U.S.  Postal  Service  as  “return  to  sender  – 
attempted not known.”    
 

APPLICABLE REGULATIONS 

 

Under  Article  12.B.18.b.4.  of  the  Personnel  Manual  in  effect  in  1988,  the  Com-

mandant could separate a member for misconduct due to drug abuse as follows:  
 

Drug  abuse.    The  illegal,  wrongful,  or  improper  use,  possession,  sale  transfer,  or  intro-
duction  on  a  military  installation  of  any  narcotic  substance,  intoxicating  inhaled  sub-
stance, marijuana, or controlled substance, as established be 21 U.S.C. 812.  Any member 
involved in a drug incident will be separated from the Coast Guard with no higher than a 
general  discharge.    However,  in  truly  exceptional  situations,  commanding  officers  may 
recommend retention of members E-3 and below involved in only a single drug incident. 
…  

 
 
Under  Article  20.C.  of  the  current  Personnel  Manual,  any  member  involved  in 
any “drug incident” is administratively discharged with no greater than a general dis-
charge under honorable conditions.  Admission of drug use is sufficient to find that a 
“drug incident” has occurred. 
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.  The application was untimely. 

 
2. 

 An application to the Board must be filed within three years of the day 
the  applicant  discovers  the  alleged  error  in  his  record.    10  U.S.C.  §  1552(b).    The 
applicant  was  issued  a  DD  Form  214  on  February  4,  1988,  with  a  discharge  under 

honorable  conditions  and  an  RE-4  reenlistment  code.    This  information  is  clearly 
marked on the DD 214 and thus he knew or should have known that he had received a 
discharge  under  honorable  conditions  and  an  RE-4  reenlistment  code.    Therefore,  the 
Board  finds  that  the  application  was  filed  more  than  14  years  after  the  statute  of 
limitations expired and is untimely. 

 
3. 

Under 10 U.S.C. § 1552(b), the Board may waive the three-year statute of 
limitations if it is in the interest of justice to do so.  In Allen v. Card, 799 F. Supp. 158, 164 
(D.D.C. 1992), the court stated that in assessing whether the interest of justice supports a 
waiver of the statute of limitations, the Board “should analyze both the reasons for the 
delay  and  the  potential  merits  of  the  claim  based  on  a  cursory  review.”    The  court 
further instructed 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 a full review.”  Id. 
at 164, 165.   See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).  
 

4. 

The  applicant  provided  no  explanation  for  his  failure  to  request  an 
upgrade  of  his  discharge  at  an  earlier  date,  nor  did  he  provide  any  reasons  why  his 
discharge  should  be  upgraded.    A  cursory  review  of  the  record  indicates  that  the 
applicant  has  not  proved  that  the  Coast  Guard  committed  an  error  or  injustice  in 
awarding  him  a  general  discharge. 
  The  record  indicates  that  the  applicant’s 
commanding officer recommended his discharge after he admitted to using drugs and 
the Commandant directed that the applicant be discharged for misconduct on February 
4, 1988, with a general discharge under honorable conditions, in accordance with Article 
12.B.18. of the Personnel Manual.  Absent evidence to the contrary, the Board presumes 
that  Coast  Guard  officials  have  acted  correctly,  lawfully,  and  in  good  faith.  Arens  v. 
United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 
813 (Ct. Cl. 1979).  Therefore, the Board finds that it is not in the interest of justice to 
waive the three-year statute of limitations. 
 

5. 

 Accordingly,  due  to  the  probable  lack  of  success  on  the  merits  of  his 
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 APPEAR ON NEXT PAGE] 

 

ORDER 

 

The  application  of  former  SN  XXXXXXXXXXXXX,  xxx  xx  xxxx,  USCG,  for 

 
 

 
 

 
 

        

 
 Frank H. Esposito 

 

 
 

 
 

 
 

 
 

 
 

correction of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 
 Jordan S. Fried 

 

 

 
 William R. Kraus