DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-001 
 
XXXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXXX 

 

 
 

FINAL DECISION 

 
 
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  Chair  docketed  the  application  upon 
receipt of the applicant’s completed application on October 5, 2010, and subsequently prepared 
the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  23,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  removing  a  negative 
administrative  remarks  page  (page  7)  dated  January  16,  2003.    The  subject  page  7  states  the 
following: 
 

16Jan03:  You have been disenrolled from Food Service Specialist (FS) A School 
with a “Fault” disenrollment, as a result of your own actions.  Specifically, you 
were  disenrolled  because  you  were  arrested  by  the  California  Highway  Patrol 
(CHP)  for  driving  under  the  influence  (DUI)  of  alcohol  with  a  Blood Alcohol 
Content  (BAC)  of  .09.   As  a  result  of  your  “fault”  disenrollment,  you  are  not 
eligible to reapply for any Class “A” school for one (1) year from date on your 
disenrollment . . .  [The applicant acknowledged the entry with his signature on 
April 28, 2003]. 

 
 
The applicant admitted that he was involved in one alcohol incident on April 27, 2003, 
and  one  alcohol-related  situation  on  April  3,  2004.    However,  he  argued  that  the  incident 
discussed above on the January 16, 2003 page 7 could not have taken place because he did not 
report to FS “A” school in California until March 16, 2003.   He stated that on January 16, 2003, 
he was still at Coast Guard Station Venice, Louisiana.   
 

 
The applicant had an earlier application before the Board, Docket No. 2006-063, in which 
he requested that his RE-4 (not eligible) reenlistment code be upgraded so that he could reenlist 
in  the  Coast  Guard.   The  disputed  page  7  was  mentioned  in  the  final  decision  in  Docket  No. 
2006-063.  The Board made the following findings and conclusions in that case:  
 

2. The applicant requested that the  reenlistment  code on his  DD 214 be 
upgraded so he can reenlist in the Coast Guard.  The applicant stated that the RE-
4  reenlistment  code  is  unjust  and  it  prohibits  him  from  having  a  career  in  the 
military. 
 

3. The record indicates that the applicant experienced numerous problems 
related  to  his  alcohol  consumption  during  his  service  in  the  Coast  Guard.    In 
January 2003, he was disenrolled from A School because he had been arrested by 
the  local  authorities  for  driving  under  the  influence.    On  April  27,  2003,  the 
applicant was once again stopped by local law enforcement and was found to be 
driving while intoxicated.  On April 28, 2003, he was referred to the Command 
Drug and Alcohol Representative (CDAR) at TRACEN Petaluma for evaluation, 
who  subsequently  noted  that  the  applicant  met  the  diagnostic  criteria  for 
substance abuse.  The Coast Guard informed the applicant that the April 27, 2003, 
incident  was  “being  considered  his  first  alcohol  incident  for  documentation 
purposes” and that “any further incidents may result in your separation from the 
U.S. Coast Guard.”  [Emphasis added.] 
 

4. The record indicates that the applicant was arrested on April 4, 2004, 
for public drunkenness, and the Page 7 documenting the incident noted that the 
incident  would  be  recorded  as  an  “alcohol  situation,”  in  lieu  of  an  “alcohol 
incident.”  The applicant was referred to a TRACEN Petaluma medical officer, in 
accordance  with  Article  20.A.2.e.  of  the  Personnel  Manual,  who  provided  a 
diagnosis of alcohol abuse and recommended that the applicant complete a 14-day 
outpatient  treatment  program.    The  record  indicates  that  the  applicant  declined 
treatment  for  his  alcohol  abuse,  and  that  he  was  counseled  that  his  refusal  to 
attend  and  complete  the  treatment  would  result  in  his  being  recommended  for 
discharge from the Coast Guard.  The Board notes that on May 5, 2004, when the 
applicant was told that he was being discharged from the Coast Guard, he once 
again indicated that he “did not desire to receive treatment for substance abuse.”  
The applicant also did not object to being discharged. 

 
5. The Board finds that the applicant was properly discharged subsequent 
to his failure to participate in an alcohol treatment program.  In accordance with 
Article 20.B.2.k. of the Personnel Manual, the applicant’s CO had the authority to 
recommend discharge of any member who had refused to undergo the treatment 
deemed necessary by the CO and a competent medical authority. 
 

6. The applicant has failed to prove by a preponderance of the evidence 
that his discharge for alcohol rehabilitation failure following his refusal to attend 
treatment for his alcohol problem was in any way erroneous or unjust or that he 

was denied any due process pursuant to his discharge under Article 12.B.16. of 
the Personnel Manual.  In accordance with the SPD Handbook, an RE-4 code is 
the  appropriate  reenlistment  code  for  a  member  discharged  for  refusing  to 
participate  in  a  treatment  program  for  alcohol  rehabilitation.    Although  the 
applicant provided a letter from his stepfather and letters from two Coast Guard 
members  who  knew  him  prior  to  his  discharge,  he  has  not  submitted  sufficient 
evidence of successful rehabilitation treatment for alcohol abuse or  evidence of 
his sustained sobriety following such treatment.  In light of the current record, the 
applicant has not proved that his receipt of the RE-4 code is erroneous or unjust.   
 
7. Accordingly, the applicant’s request should be denied. 
 
Although  not  discussed  in  the  Findings  and  Conclusion  of  Docket  No.  2006-063,  the 
Board notes that on April 28, 2003, the commanding officer of USCG Training Center Petaluma 
suspended the applicant’s base driving privileges for one year due to his April 27, 2003 stop by 
local law enforcement for driving while intoxicated.  
 

The applicant stated that he did not discover the alleged error in the current case until 
August 17, 2010.  He also argued that it is in the interest of justice to consider his application if 
more than 3 years have passed since he discovered the error because the earlier Board may have 
relied on the page 7 in denying his request for an upgrade of his reenlistment code.  The final 
decision in Docket No. 2006-063 was issued on October 16, 2006.   
 

VIEWS OF THE COAST GUARD 

 
 
On February 2, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny relief to the applicant.   The JAG stated 
that the application is untimely and should be denied on that basis. 
 

With respect to the merits, the JAG stated that date of entry (16Jan03) on the page 7 is an 
administrative error or oversight.  The JAG noted that the applicant was scheduled to arrive at FS 
“A” school in Petaluma CA not later than March 16, 2003, based upon a copy of his orders that 
were attached to the advisory opinion; that he was arrested and charged with DUI on April 27, 
2003; that his driving privileges on CG Training Center Petaluma were suspended on April 28, 
2003;  and  that  on  April  28,  2003,  the  applicant  acknowledged  his  disenrollment  from  “A” 
school.  The JAG stated that although the entry date on the page 7 appears to be incorrect, it is 
the  Coast  Guard’s  position  that  this  error  should  be  deemed  harmless  at  best  because  the 
applicant was well aware of the date of his arrest and of his withdrawal from “A” school.  The 
JAG further stated the following: 

 
The  page  7  clearly  describes  the  performance  deficiencies  at  issue;  is  member 
specific;  and  is  a  valid  use  of  the  command’s  authority  to  place  members  on 
notice of substandard performance.  The applicant provided no evidence to refute 
the  validity  of  the  [page  7]  documenting  [his]  misconduct.    Therefore,  the 
assumption can be made that the page 7 entry into the applicant’s record is valid 
albeit [with an] incorrect entry date.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
 
On March 3, 2011, the BCMR received the applicant’s response to the views of the Coast 
Guard.  The applicant stated that he has no further requests if the Coast Guard is saying that the 
January  16,  2003,  date  is  a  clerical  error  and  that  the  prior  Board  was  not  influenced  by  the 
erroneous date in the final decision in Docket No. 2006-063.  
 

 

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 applicable law: 
 

1. The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

of the United States Code.   

  
  
2.    The  application  was  not  timely.    To  be  timely,  an  application  for  correction  of  a 
military  record  must  be  submitted  within  three  years  after  the  applicant  discovered  or  should 
have discovered the alleged error or injustice.  See 33 CFR 52.22.   The applicant asserted that he 
discovered  the  alleged  error  on  August  17,  2010.    However  he  should  have  discovered  the 
alleged error as early as April 28, 2003 when he acknowledged the January 16, 2003 entry with 
his signature and no later than his discharge from the Coast Guard on June 3, 2004.   
 

3.      The  Board  may  still  consider  the  application  on  the  merits,  if  it  finds  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 stated 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 argued that the Board should excuse his untimeliness because the subject 
page 7 may have caused the earlier Board, in BCMR No. 2006-063, to believe that he had three 
alcohol incidents/situations, instead of two.  Even if true, the application is still untimely.  The 
Board issued that decision October 19, 2006, and the applicant did not file his current application 
with  the  Board  until  September  20,  2010.    The  applicant  has  not  articulated  a  reason  that 
persuades  the  Board  that  he  could  not  have  submitted  his  application  within  three  years  of 
October 19, 2006. 

 
5.  With respect to a cursory review of the merits, the Board finds that the applicant is not 
likely to prevail on his claim that the subject page 7 should be removed because it refers to an 
incident  that  did  not  occur.    In  this  regard,  he  argued  that  he  did  not  begin  “A”  school  until 
March 2003.  The Board agrees with the JAG that the January 16, 2003 date on the subject page 
7 is an administrative error, but the content clearly reflects an incident that occurred while the 
applicant  was  attending  “A”  School.    The  page  7  indicates  that  the  applicant  was  disenrolled 
from  “A”  school  due  to  an  arrest  by  the  CHP  for  a  DUI.    Additionally,  the  applicant’s 

acknowledgement of his disenrollment from “A” school on April 28, 2003, persuades the Broad 
that although the January 16, 2003 entry date on the page 7 is an administrative error, the arrest 
actually  happened  on  April  27,  2003,  as  stated  by  the  JAG.      The  April  28,  2003  letter 
suspending the applicant’s driving privileges on Training Center Petaluma due to an April 27, 
2003 DWI is further evidence that the January 16, 2003 date is an administrative error but that 
the content on the page 7 accurately refers to the April 27, 2003 DUI.     

 
6.    More  importantly,  the  Board  finds  that  the  earlier  Board  in  Docket  No.  2006-063 
denied  the  applicant’s  request  for  an  upgrade  of  his  reenlistment  code  because  he  refused  to 
attend  a  14-day  program  for  alcohol  abuse  as  recommended  by  a  medical  officer  and  his 
command, and not because of the number of alcohol incidents/situations that were documented 
in his record.  He was subsequently discharged because of alcohol rehabilitation failure.  Article 
20.B.2.k. of the Personnel Manual states that members refusing to undergo the treatment deemed 
necessary by the CO and a competent medical authority are normally processed for separation.  
That Board also found that according to the Separation Program Designator Handbook, the RE-4 
code was the appropriate reenlistment code for a member discharged for refusing to participate in 
a treatment program for alcohol rehabilitation. 

 
7.  Accordingly, 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 FOLLOWING PAGE] 

The application of former XXXXXXXXXXXXX, USCG, for correction of his military 

ORDER 

 

 
 

 
 

 
 

record is denied.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 

        

 
 
 Philip B. Busch 

 

 
 Reagan N. Clyne 

 

 

 
 Rebecca D. Orban