DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
 
BCMR Docket 
No. 2001-028 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 
xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxx 
 
    

  FINAL DECISION 

This  final  decision,  dated  September  27,  2001,  is  signed  by  three  duly  appointed 

 
ULMER, Deputy Chairman: 
 
 
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 January 17, 2001, upon the Board's receipt 
of the applicant's complete application for correction of his military record. 
 
 
members who were designated to serve as the Board in this case. 
 
 
The applicant, a former yeoman second class (YN2; pay grade E-5) in the Coast Guard 
Reserve, asked the Board to correct his record to show that he was retired from the Coast Guard 
by reason of physical disability in the highest grade that he has held during his military service.  
In the alternative, he stated that he should be reinstated in the Coast Guard Reserve so that he 
could earn enough years to qualify for retirement.   
 

The applicant enlisted in the Coast Guard on April 26, 1975.  His Coast Guard active 
duty service was terminated on xxxxxxxxxxxxxxxx, with a general discharge under honorable 
conditions because of misconduct due to fraudulent enlistment.1  Prior to enlisting in the Coast 
Guard, the applicant had served for several years in the Air Force.  The applicant stated that he 
had also served in the xxxxxxxxxxx and xxxxxxxx National Guards.   
 

 

EXCERPTS FROM RECORD AND SUBMISSIONS 

                                                 
1    The  applicant  apparently  “altered  various  and  numerous  documents  concerning  his  prior 
military service.  For example, the [Coast Guard Report of Investigation] contains evidence that 
[applicant] altered his record to show that he served as a captain in the Air Force at one time 
when he had not served as a captain . . .  [O]ther documents had been altered to show different 
lengths  of  service  than  those  [applicant]  actually  served.    One  of  the  alterations  changed  the 
reason  for  [applicant’s]  discharge  from  the  xxxxxxxxxxx  National  Guard  from  ‘Fraudulent 
Enlistment’ to ‘Expiration of Term of Enlistment’.”  See BCMR No. 328-85, p.1.   
 

 
The  applicant  claimed  that  he  suffers  from  the  following  medical  problems:    heart 
attack/stroke,  high  blood  pressure,  high  cholesterol,  diabetes,  and  arthritis.    He  stated  that  he 
believed his record to be in error or unjust for the following reasons: 
 

I have received no retirement or disability from the military services. [Seventeen 
years  of]  service  should  give  me  a  disability  at  the  highest  rank  held  in  the 
military services.   

The applicant stated that the three-year statute of limitations for filing a corrective action 

 
The  applicant  also  claimed  that  he  has  suffered  an  injustice  because  he  applied  for  a 
 
commission as an officer while in the Coast Guard, but he never received the test results.   He 
stated  that  he  was  discharged  from  the  Coast  Guard  shortly  after  he  took  the  test  for  a 
commission as an officer.  
 
 
should be waived due to his disability, age, low-income, and length of military service. 
 
 
The  applicant  submitted  copies  of  documents  from  his  Air  Force  record,  copies  of  his 
Coast Guard enlistment and discharge documents, and copies of his discharge documents from 
the  xxxxxxxxxxx  National  Guard,  which  state  that  he  was  discharged  due  to  fraudulent 
enlistment.    He  also  submitted  copies  of  certificates  that  show  he  has  earned  two  doctors  of 
divinity degrees and that he is an ordained pastor. 
 
Applicant’s Coast Guard Record  
 
 
On February 27, 1976, the Commandant approved the applicant’s discharge because of 
misconduct  due  to  fraudulent  enlistment.    The  Commandant  stated  that  since  the  applicant’s 
enlistment was fraudulent, he was not entitled to any credit for that enlistment.  Apparently, prior 
to his actual discharge in 1976, the applicant had asked to remain in the Coast Guard either as an 
officer or enlisted person, or in the alternative to be retired.  In reply to the applicant’s request, 
the Commandant wrote the following: 
 

[The  applicant]  does  not  meet  the  qualifications  for  direct  commission  or 
enlistment in the regular Coast Guard Reserve.  He does not have 20 satisfactory 
years  of  Federal  service  for  retirement  under  the  provisions  of  10  [U.S.C.  §§] 
1331-1337.  Finally, the evidence and arguments presented by [the applicant] are 
insufficient  to  warrant  convening  a  medical  evaluation/disposition  board  to 
consider him for medical retirement or discharge.   

 
 
On  February  27,  1976,  the  Commanding  Officer  (CO)  of  Enlisted  Personnel  at  Coast 
Guard  Headquarters  informed  the  applicant  that  he  had  been  issued  a  general  discharge  “for 
misconduct by reason of procurement of fraudulent enlistment effective 27 February 1976.”  The 
applicant  was  further  informed  that  he  would  receive  an  RE-4  (not  eligible  for  reenlistment) 
reenlistment code.  The CO further stated as follows: 
 

Article  15-A-2  of  [the  Personnel  Manual,  CG-207]  defines  the  types  of  service 
that are not creditable for pay, longevity or retirement purposes.  A person who is 
discharged by reason of a fraudulent enlistment is not entitled to credit for any 
service  during  such  enlistment.    You  are  advised  that  your  official  records  and 
separation documents reflect a general discharge from the Coast Guard Reserve 

for fraudulent enlistment.  Although this does not invalidate your previous service 
in the United States Air Force, it does cancel any benefits or entitlements based 
on or derived from your enlistment in the Coast Guard Reserve.  Determination of 
eligibility for veterans benefits based on your Air Force Service will be made by 
the appropriate agency or administration involved at the time of your application 
for benefits. 

 
 
In a previous application to the Board, BCMR No. 328-85, the applicant requested that 
his misconduct discharge from the Coast Guard Reserve be declared illegal and all evidence of it 
be removed from his official records.  He claimed that since there was no lawful enlistment there 
could be no discharge.  The applicant also requested an upgrade of his RE-4 reenlistment code so 
that he could reenlist and complete twenty years of service to earn a retirement.  He also asked 
that  his  “time  in  the  Coast  Guard    .  .  .  count  towards  his  retirement.”    Last,  the  applicant 
requested in Docket No. 328-85 that the Board consider advancing him to the rank of E-9.  In 
1987, the Board issued a final decision denying the applicant’s request in that case because it 
was untimely.  However, the Board stated that  
 

[e]ven  if  we  were  to  consider  petitioner’s  application  on  the  merits  we  would 
deny relief. Contrary to petitioner’s statement, an enlistment contract, signed by 
him on April 26, 1975, does exist.  Petitioner has not provided any evidence that 
an error or injustice occurred with respect to the Coast Guard’s action in his case.  
It appears that the Coast Guard had ample grounds to discharge petitioner with a 
general  discharge  by  reason  of  misconduct  due  to  fraudulent  enlistment  and  to 
prosecute him in Federal Court.2  We would not find any change to petitioner’s 
record to be warranted. 

 
The  applicant’s  military  medical  record  contained  an  enlistment  medical  examination 
 
dated  February  22,  1975  stating  that  the  applicant  was  in  good  health.    On  a  later  medical 
examination, dated October 24, 1975 the applicant was determined to be qualified for active duty 
training.  The medical examination contained the following note:  “There is no active pulmonary 
disease, minimal fibrosis is present at the left base, the heart is normal in size.”   
 
Views of the Coast Guard  
 
 
Coast Guard recommending that the Board deny relief to the applicant.  He stated as follows: 
 

On May 7, 2001, the Board received an advisory opinion from the Chief Counsel of the 

[T[he Chairman should dismiss this case with prejudice for lack of jurisdiction.  
Applicant  was  given  a  general  discharge  from  the  Coast  Guard  Reserve  on  27 
February 1976 under honorable conditions for misconduct by reason of fraudulent 
enlistment.    Further    .  .  .  Applicant’s  Coast  Guard  service  was  voided  by  the 
determination of fraud, which made any service in the Coast Guard void ab initio.  

                                                 
2    With  respect  to  the  federal  court  prosecution,  the  Board in  BCMR  No.  328-85,  recited  the 
following;  “petitioner stated that after he was discharged, representatives of the Coast Guard 
Reserve  followed  him  to  xxxxxxxx  and  charged  him  in  Federal  court.    Petitioner  submitted 
documents showing  that  on  September  21,  1977,  he  was  found  guilty  as  charged,  in  the  U.S. 
District Court for the xxxxxxx xxxxxxxx xx xxxxxxxx, of the offenses of [defrauding the United 
States].”   

Hence, Applicant has no cognizable Coast Guard record to correct . . . Moreover, 
even  if  the  Chairman  determined  this  matter  was  subject  to  the  BCMR’s 
jurisdiction, the determination the Board made in [BCMR No. 1985-328] would 
bar any relief sought by Applicant.   

On  May  17,  2001,  the  Board  received  the  applicant’s  reply  to  the  views  of  the  Coast 

 
Applicant’s Response to the Views of the Coast Guard 
 
 
Guard.  He stated his disagreement with the Coast Guard’s position.  
 
 
The applicant denied that he had fraudulently enlisted in the Coast Guard.  He stated that 
all records that he sent to the Board are true and correct.  He further stated that his enlistment 
was  approved  by  the  Reserve  Division  at  Coast  Guard  Headquarters.    The  applicant  further 
claimed that he took a test for a commission as an officer and a few days later action was taken 
against  him  for  fraudulent  enlistment.    He  stated  that  in  1977  he  was  given  a  three-year 
suspended sentence by a federal court judge for defrauding the government.  He claims that some 
of the evidence that was used against him in that conviction was created by someone other than 
himself.    
 

FINDINGS AND CONCLUSIONS 

The  Board  makes  the  following  findings  and  conclusions  based  on  the  applicant's 

 
 
military record and submissions, the Coast Guard's submission, and applicable law: 
 
 
1.  The BCMR has jurisdiction of the case pursuant to section 1552 of title 10, United 
States  Code.  This  provision  states  that  the  Board  may  correct  any  military  record.    Therefore 
contrary  to  the  Coast  Guard’s  opinion,  the  Board  has  the  authority  to  correct  the  applicant’s 
record if it determines such record to be in error or unjust. 
 
 
2. The application was not timely.  The applicant had been discharged  from the Coast 
Guard for approximately 24 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  10  USC  § 
1552(b).   
 
 
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 the timeliness requirement, “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 Allen v. Card, 799 F. Supp. 158, 166 
(D.D.C. 1992).  The applicant stated that he discovered this error on March 1, 2000.  The Board 
finds that the applicant discovered or should have discovered the alleged error or injustice with 
respect to his discharge much earlier.  He also should have been aware in 1976, or very soon 
thereafter, of any medical condition that could have led to a physical disability retirement, since 
any  such  condition  must  have  been  incurred  while  he  was  on  active  duty.    Therefore,  the 
applicant should have been aware  at the time of his discharge of any diseases or injuries that 
caused him to be unfit to perform his military duties.   
 
 
4.  The applicant certainly should have discovered the alleged  errors in 1985 when he 
filed  his  first  application  (BCMR  No.  328-85)  with  the  Board  challenging  the  legality  of  his 

discharge.  Although the Board issued a final decision denying relief in that case in 1987, the 
applicant still waited approximately 13 years before filing his current application with the Board. 
 

5.    The  applicant  asked  the  Board  to  waive  the  statute  of  limitations  because  of  his 
disability, age, low income, and length of service. However, he failed to explain why he could 
not  have  filed  the  application  sooner.    There  is  no  evidence  in  the  record  that  the  applicant 
suffered with a medical condition that interfered with his to ability to file a timely application 
with the Board.  The applicant’s reasons for not filing his application sooner are not persuasive. 

 
6.  The Board finds that even if the untimeliness were excused, the applicant would not 
succeed  on  the  merits  of  his  claim.  The  Coast  Guard  has  determined  that  the  applicant’s 
enlistment from xxxxxxxxxxxxxx to xxxxxxxxxxxxxxxxx was fraudulent and that he would not 
receive any credit for time served during that enlistment. The fraudulent enlistment is the only 
Coast Guard service for the applicant. Since the applicant is not entitled to reap any benefit from 
the fraudulent enlistment, he is not eligible for a retirement because of physical disability, even if 
such a disability were incurred during his Coast Guard Service.  Moreover, he has not submitted 
any  evidence  that  proves  he  was  ever  unfit  to  perform  his  military  duties  during  a  period  of 
active duty.  The medical evidence in his record indicates that he was fit to perform the duties of 
his rate.  Current medical conditions, not incurred on active duty, are not a basis for awarding a 
physical disability retirement.   

 
7.    The  applicant  has  not  presented  any  evidence  establishing  that  the  Coast  Guard 
committed an error or injustice when it discharged him because of misconduct due to fraudulent 
enlistment.  In addition, the Board in BCMR No. 328-85, noted that it found no error or injustice 
with respect to the applicant’s 1976 discharge.   
 
8.  There is no evidence in the record that the applicant was ever commissioned as an 
 
officer  in  the  Coast  Guard.    The  fact  that  he  took  a  test  that  could  possibly  have  led  to  a 
commission does not mean that he was ever commissioned.   
 

9.  Based on the above, it is not in the interest of justice to waive the statute of limitations 

in this case. 
 
 
10.  The Board notes that the applicant may qualify for veteran’s benefits based on his 
Air Force service.  If he has not done so, he should contact the Department of Veterans Affairs 
for a determination of his eligibility for veteran’s benefits based on his Air Force service. 
 
11.  The Board did not treat this application as a request for reconsideration of Docket 
 
No. 328-85 because the two applications contain different requests for relief.  In Docket No. 328-
85,  the  applicant  requested  to  have  all  evidence  of  his  Coast  Guard  enlistment  and  discharge 
removed from his military record, which was denied by that Board.  In the current case, he is 
asking for a physical disability retirement based on his active duty service.   

 
12.  Accordingly, this case should be denied. 

 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 

ORDER 

 

The  application  of  xxxxxxxxxx  xxxx  x.  xxxxxx,  xx.,  xxx  xx  xxxx,  USCG,  for  the 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
correction of his military record is denied.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Michael K. Nolan 

 

 

 

 
 
Edmund T. Sommer, Jr. 

 

 

 
David M. Wiegand