DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-054 
 
Xxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
This proceeding was conducted under 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  28,  2002,  upon  the  BCMR’s  receipt  of  the  applicant’s  completed  application 
and military records.1 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  December  12,  2002,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The applicant asked the Board to correct his record by revoking his conviction by 
summary court-martial.2  He alleged that his summary court-martial and general dis-
charge resulted from a 25-minute period of unauthorized absence that was caused by 

                                                 
1  The applicant originally applied to the BCMR on June 3, 1997.  However, his case was administratively 
closed on July 16, 1997, when the Chairman determined that he had simultaneously applied to the Dis-
charge Review Board (DRB).  Under 33 C.F.R. § 52.13, applicants must exhaust such administrative reme-
dies  before  applying  to  the  BMCR.    However,  on  July  23,  2001,  the  DRB  informed  the  applicant  that 
because  his  allegations  are  “of  a  medical  nature,”  the  DRB  does  not  have  jurisdiction,  and  he  should 
reapply to the BCMR.  
2  In his original application to the DRB, the applicant asked that board to upgrade his discharge to honor-
able,  but  the  DRB  determined  that  it  had  no  jurisdiction  over  the  matter  and  directed  the  applicant  to 
apply to the BCMR.  Therefore, although the applicant did not expressly ask the BCMR to upgrade his 
discharge on his DD 149 application form (perhaps due to confusion about the boards’ authorities), this 
Board will consider the matter of the applicant’s discharge as well. 

his bipolar disorder.3  He alleged that it is unjust for him to have been court-martialed 
since,  but  for  his  bipolar  disorder,  he  would  never  have  gone  absent  without  leave 
(AWOL).  The applicant alleged that his medical records show that he has been diag-
nosed with the disorder and was already bipolar at the time he went AWOL. 
 
 
In support of his allegation, the applicant submitted a statement from the CO of 
his Reserve unit.  The CO stated that while serving at the unit, the applicant “performed 
well and did his duties without any hesitation.  He was dependable and very courteous.  
He was a credit to the US Coast Guard.”  The CO stated that he did not learn about the 
applicant’s  bipolar  disorder  until  after  the  applicant  was  discharged.    He  also  stated 
that  the  officers  at  the  unit  were  quite  surprised  when  they  learned  about  the  appli-
cant’s  trouble  at  boot  camp  “since  he  was  expected  to  be  among  the  best  candidates 
there.”    The  CO  stated  that  he  supports  the  applicant’s  request  for  an  honorable  dis-
charge. 
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

 

On  June  6,  19xx,  the  applicant,  then  23  years  old,  enlisted  in  the  Coast  Guard 
Reserve for eight years under the RK program, which required that he complete basic 
training, attend “A” School or get on-the-job training to become a petty officer, and drill 
regularly for at least 6 years.  A court memorandum in his record indicates that, while 
attending  basic  training  in  Cape  May,  New Jersey,  on  July  1,  19xx,  the  applicant  was 
found to have been  AWOL from about xxxx p.m. to xxxx p.m.   The circumstances of 
this incident are not in the record.  On August 2, 19xx, while still at the training center, 
he was convicted of the unauthorized absence by summary court-martial and was sen-
tenced to 7 days’ confinement in the brig; forfeiture of $200; and reduction in pay grade 
from  E-2  to  E-1.    On  August  26,  19xx,  after  he  served  his  period  of  confinement  and 
completed basic training, the applicant was advanced again to E-2. 

 
On September 12, 19xx, the applicant was assigned to inactive duty at a drilling 
unit near his home.  From that date until the next summer, he performed his drills fairly 
consistently,  missing  drills  only  in  April.    In  the  summer  of  19xx,  he  performed  11 
weeks of on-the-job training to become a petty officer.  He also took several correspon-
dence courses, but he never passed the courses and never qualified as a petty officer. 

 

                                                 
3      Bipolar  disorder  is  a  mood  disorder  characterized  by  recurrent  depressive  episodes  and  manic  epi-
sodes and sometimes by psychotic  or catatonic features. American  Psychiatric Association, DIAGNOSTIC 
AND  STATISTICAL  MANUAL  OF  MENTAL  DISORDERS,  FOURTH  EDITION,  TEXT  REVISION  (2000)  (DSM-IV-TR), 
p. 382 et sec.  The average age at onset is 20.  Id. at 386.  Truancy and occupational failure are common 
features of the disorder.  Id. at 394.  Paranoia, anxiety, and irritability are common symptoms of bipolar 
disorder.    Eugene  Braunwald  et  al.,  eds.,  HARRISON’S  PRINCIPLES  OF  INTERNAL  MEDICINE,  15TH  EDITION 
(McGraw-Hill, 2001), p. 2551.  Under Chapter 5 of the Coast Guard Medical Manual, bipolar disorders are 
considered physical disabilities disqualifying for military service. 

The applicant performed drills steadily through early April 19xx.  He received a 
Certificate of Appreciation for his work in security zone operations in December 19xx.  
Also,  in  March  19xx,  his  commanding  officer  (CO)  made  a  very  positive  entry  in  his 
record stating that the applicant had volunteered for an assignment with little advance 
notice and great enthusiasm even though it required that he change his plans and take 
time off from his civilian job.  The CO stated that he had performed a very long and 
strenuous job outstandingly, professionally, and wholeheartedly.   

 
The applicant, however, performed no drills at all in May, June, or July 19xx.  He 
drilled once in August 19xx, failed to drill in September and October, and drilled one 
last time on November 2, 19xx.  He performed no drills at all thereafter. 

 
On February 9, 19xx, the CO sent the applicant a letter by certified mail to inform 
him that he was initiating action to discharge him from the Reserve in accordance with 
Article 12-B-11 of the Personnel Manual because of his “uninterrupted pattern of shirk-
ing.”    The  CO  noted  that  the  applicant  had  been  absent  24  times  since  November  2, 
19xx,  and that the  command’s  efforts  to  contact  him  had  been  unsuccessful.    The  CO 
stated  that  his  performance  marks  supported  a  general  discharge,  which  could  preju-
dice him in civilian life.  He also told the applicant that he was entitled to submit a state-
ment  on  his  own  behalf.    Along  with this  letter,  the CO  sent  the applicant  a  form  on 
which he was supposed to acknowledge the notification and indicate whether he object-
ed to being discharged and intended to submit a statement.   

 
On February 13, 19xx, the applicant acknowledged the notification and respond-
ed,  stating  that  he  “would  like  very  much  to  be  awarded  a  general  discharge,  under 
honorable conditions.” 

 
On May 4, 19xx, the Commandant directed the CO to issue the applicant a gen-
eral discharge “by reason of misconduct (shirking),” in accordance with Article 12-B-18 
of the Personnel Manual, with an RE-4 reenlistment code (not eligible for reenlistment) 
and  an  HKJ  separation  code  (which  meant  “misconduct—an  established  pattern  of 
shirking”).  The applicant was discharged from the Reserve on the same day. 
 

SUMMARY OF THE APPLICANT’S MEDICAL RECORDS 

The applicant’s Coast Guard medical records contain no evidence of any mental 

 
 
illness or disorder. 
 
 
On July 17, 19xx; July 30, 19xx; and June 23, 19xx, the applicant was treated at a 
psychiatric hospital on an outpatient basis.  From June 28 to July 2, 19xx, he was hospi-
talized in a manic phase of bipolar disorder. 
 

From July 26 to August 18, 19xx, the applicant was hospitalized in a manic phase 

From  May  8  to  May  18,  19xx,  the  applicant  was  hospitalized  in  a  depressive 

 
of bipolar disorder.  
 
 
phase of bipolar disorder.  
 
 
On August 2, 1995, a psychologist, Dr. B, wrote a letter stating that, from Novem-
ber 19xx through 19xx, he treated the applicant for his complaints of nervousness.  Dr. B 
stated that at that time, he diagnosed the applicant with a paranoid personality disorder 
with frequent obsessive-compulsive episodes. 
 
 
On August 14, 1995, a psychiatrist, Dr. Q, wrote a letter stating that he treated the 
applicant  in  four  sessions  from  June  26  through  August  18,  19xx.    Dr.  Q  stated  that 
during those sessions, the applicant told him about the incident at boot camp for which 
he had been court-martialed.  The applicant told the doctor that he had tried to escape 
by swimming across a body of water that was too wide to swim across.  He also told his 
doctor that, since that incident, he had felt irritable, nervous, and pathologically suspi-
cious, and he had had difficulty maintaining relationships.  Dr. Q described the appli-
cant as sad, tense, and anxious and stated that he had diagnosed the applicant with a 
bipolar disorder and paranoid personality disorder. 
 

On August 30, 1995, the applicant applied to the Department of Veterans’ Affairs 
(DVA) for disability benefits.  On November 12, 1996, the DVA informed the applicant 
that it had determined that his bipolar disorder was service connected and that it had 
been  30-percent  disabling  since  August  30,  1995.    The  DVA  explained  that  although 
“Service records do not show onset during service, … private [medical] records show 
treatment during active service interval.  Veteran has been hospitalized approximately 
yearly for short periods, [and] is taking medication.” 
 
 
On May 19, 1997, a psychiatrist, Dr. F, wrote a letter to the Commandant stating 
that he had been treating the applicant for bipolar disorder since July 1994.  Dr. F also 
stated that the applicant was unemployed and had required two in-patient hospitaliza-
tions in the three years he had been treating him. 
 
 
 

On July 3, 1997, the DVA reaffirmed the applicant’s 30-percent disability rating. 

VIEWS OF THE COAST GUARD 

 
 
On July 22, 2002, the Chief Counsel submitted an advisory opinion in which he 
recommended that the Board deny relief in this case for untimeliness but, if not, for lack 
of merit.  Copies of that advisory opinion and its enclosures are attached to this Final 
Decision below. 

  

RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On July 25, 2002, the Chairman sent the applicant a copy of the advisory opinion 
and invited him to respond within 15 days.  On August 2, 2002, the Board received a 
letter from the applicant’s father.4  He stated that when his son went AWOL in 19xx and 
skipped his drills in 19xx, he was in the early stages of a bipolar disorder that became 
“amply evident shortly thereafter.”  He alleged that it is well known that bipolar dis-
order “does not develop overnight” and that, since his son’s disease was “incipient, it is 
absurd to pretend that he could have been aware of his medical condition or to report it 
to his chain of command.”  The applicant’s father further alleged that the onset of his 
son’s condition during his military service has been substantiated by the DVA and that 
his son’s continuous and deteriorating bipolar disorder since July 19xx should excuse 
his failure to file a timely application.  

 

                                                 
4 The applicant did not list his father as his counsel on his application to the Board.  Therefore, this state-
ment is not accepted by the Board as a statement by the applicant himself.  However, it has some eviden-
tiary weight regarding the onset, duration, and severity of the applicant’s condition. 

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  10  U.S.C. 
§ 1552.  The record indicates that the applicant has exhausted his administrative reme-
dies because he applied to the DRB, but that board found that it had no jurisdiction over 
his case. 
 

2. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the 
applicant discovers the alleged error in his  record.5  The applicant was released from 
boot camp into the inactive Reserve after having been court-martialed in 19xx, and he 
received  his  general  discharge  in  19xx.    Therefore,  the  Board’s  three-year  statute  of 
limitations had expired for both of these matters even when the applicant first applied 
to the BCMR in 1997.  Accordingly, his application was untimely. 

 
3. 

Pursuant to 10 U.S.C. § 1552(b), the Board may waive the three-year stat-
ute of limitations if it is in the interest of justice to do so.  To determine whether it is in 
the interest of justice to waive the statute of limitations, the Board should consider the 
reasons for the delay and conduct a cursory review of the merits of the case.6 Although 
the applicant did not explain why he delayed applying to the Board, the record indi-
cates that since before the statute of limitations expired, he has been suffering from a 
serious mental illness.  In addition, a cursory review of the merits of this case indicates 
that the applicant was being treated for a serious mental illness prior to his general dis-
charge from the Reserve for shirking. Therefore, the Board finds that it is in the interest 
of justice to waive the statute of limitations in this case. 

 
4. 

In  judging  the  accuracy  of  any  military  record,  the  Board  initially  pre-
sumes that Coast Guard officers have acted correctly, lawfully, and in good faith.7  To 
overcome this presumption of regularity, an applicant must present at least some clear 
and credible evidence indicating that an error or injustice exists in his record.  If the pre-
sumption  is  overcome,  the  Board  will  weigh  the  evidence  in  the  record  to  determine 
whether the applicant has proved by a preponderance of the evidence that his record is 
erroneous or unjust and requires correction.  “[T]he Secretary and his boards have an 

                                                 
5  10 U.S.C. § 1552(b). 
6  Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 19xx). 
7  Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 19xx); Sanders v. United States, 594 F.2d 804, 813 (Ct. 
Cl. 1979). 

abiding moral sanction to determine insofar as possible, the true nature of an alleged 
injustice and to take steps to grant thorough and fitting relief.”8   

 
5. 

The applicant argued that his conviction by summary court-martial in the 
summer of 19xx should be “revoked” because he was suffering from a mental illness at 
the  time.    However,  the  Board  has  no  authority  to  overturn  a  conviction  by  court-
martial, but it may grant clemency with respect to a sentence by court-martial.9  In sup-
port  of  his  allegation,  the  applicant  submitted  a  report  from  Dr.  Q  in  which  the  psy-
chiatrist stated that when the applicant sought treatment from him in 19xx, he told the 
doctor  that  he  had  been  court-martialed  for  apparently  irrational  behavior:  trying  to 
escape by swimming across a body of water too wide to swim across.  However, other 
than Dr. Q’s 1995 statement of what the applicant told him in 19xx about the 19xx inci-
dent, there is no evidence in the record that the applicant was mentally ill when he went 
AWOL.  His military record contains only a court memorandum indicating that he was 
AWOL for approximately 25 minutes on July 1, 19xx.  Moreover, as the Chief Counsel 
argued,  the  passage  of  time  since  the  incident  has  made  it  impossible  for  the  Coast 
Guard to present evidence supporting the cause, correctness, and fairness of the appli-
cant’s  19xx  conviction  and  sentence.    Therefore,  the  Board  finds  that  the  applicant’s 
claim with respect to his unauthorized absence and summary court-martial is barred by 
the doctrine of laches. 

 
6. 

The  applicant  argued  that  his  May  19xx  general  discharge  for  shirking 
was unjust because he was suffering from bipolar disorder.  Statements in the record by 
a psychologist, Dr. B, and a psychiatrist, Dr. Q, indicate that in 19xx and 19xx, prior to 
his discharge from the Reserve, the applicant was suffering from nervousness and para-
noia, symptoms of incipient bipolar disorder.10  Dr. B diagnosed him with a paranoid 
personality disorder, and Dr. Q diagnosed him with bipolar disorder and paranoid per-
sonality disorder.  Hospital records and the statement of Dr. F indicate that in the year 
following his discharge, the applicant was treated at a psychiatric hospital on an out-
patient basis and that, from June 1993 to May 1997, he was hospitalized about once each 
year in either a manic or depressive phase of bipolar disorder. 

 
7. 

According to the DSM-IV-TR, truancy and occupational failure are com-
mon features of bipolar disorder.11  Therefore, and in light of the fact that the applicant 
drilled regularly for his first two years in the Reserve, the Board finds that in all likeli-
hood, the applicant’s subsequent failure to drill, or “shirking,” was caused by his bipo-

                                                 
8  Caddington v. United States, 178 F. Supp. 604, 607 (Ct. Cl. 1959). 
9  10 U.S.C. § 1552 (f)(2). 
10 Eugene Braunwald et al., eds., HARRISON’S PRINCIPLES OF INTERNAL MEDICINE, 15TH EDITION (McGraw-
Hill, 2001), p. 2551. 
11  American  Psychiatric  Association,  DIAGNOSTIC  AND  STATISTICAL  MANUAL  OF  MENTAL  DISORDERS, 
FOURTH EDITION, TEXT REVISION (2000) (DSM-IV-TR), p. 394.  

lar disorder.  Because the applicant never informed the Coast Guard of his condition, 
his  CO  cannot  be  faulted  for  attributing  his  failure  to  drill  to  intentional  misconduct.  
Nevertheless,  the  Board  finds  that  the  applicant  has  overcome  the  presumption  of 
regularity and proved by a preponderance of the evidence that his general discharge by 
reason of misconduct was, in fact, erroneous.  Moreover, the Board finds that the appli-
cant’s  receipt  of  a  general  discharge  for  shirking  when  he  was  suffering  from  bipolar 
disorder “shocks the sense of justice.”  See Reale v. United States, 208 Ct. Cl. 949 (1976), 
and Decision of the Deputy General Counsel, BCMR Docket No. 2001-043.    

 
8. 

The applicant has proved that when he was discharged from the Reserve 
on May 19xx, he suffered from bipolar disorder, which constitutes a physical disability 
disqualifying for retention,12 and that the disability likely caused his discharge.  There-
fore, the Board should correct the applicant’s narrative reason for separation, which was 
“Misconduct,” and his separation code, HJK, which denotes shirking,13 and determine 
which narrative reason for separation and separation and reenlistment codes he should 
have received.  Several such codes were authorized for members separated because of a 
disability,  and  some  denote  entitlement  to  either  severance  pay  or  retirement.14  
Although  the  applicant  did  not  request  a  disability  retirement  or  severance  pay,  to 
correct his record in accordance with these findings, the Board must determine whether 
he was entitled to either form of compensation.   

 
9. 

Reservists such as the applicant who were performing inactive duty train-
ing  prior to  September  1996  were  only  entitled  to  a  disability  retirement  if  they  were 
unfit  to  perform  their  duties  because  of  a  permanent  disability  rated  at  30  percent  or 
greater on the DVA’s schedule for rating disabilities and if they incurred the disability 
not due to their own misconduct and as the proximate result of performing active duty 
or inactive duty training; while traveling to or from their duty stations; or while staying 
                                                 
12  Coast Guard Medical Manual, Chapter 5.B.10. 
13    In  his  advisory  opinion,  the  Chief  Counsel  stated  that  the  applicant’s  separation  code,  HKJ,  did  not 
exist.    However,  that  code  was  a  proper  separation  code  under  the  regulations  that  existed  in  19xx.  
COMDTINST M1900.4C, Chapter 2.C. 
14    COMDTINST  M1900.4C,  Chapter  2.C.,  includes  the  following  allowable  combinations  of  codes  for 
disability separations: 
• 

SJF,  denoting  permanent  retirement  by  reason  of  physical  disability,  and  either  the  RE-3P  or  RE-4 
reenlistment code. 
JFL, denoting a separation for physical disability with severance pay, and an RE-4 reenlistment code. 
JFM, denoting a separation for a physical disability that existed prior to enlistment and that does not 
entitle the member to a disability retirement or severance pay, and the RE-4 reenlistment code. 
JFP, denoting a separation for physical disability incurred through intentional misconduct or willful 
neglect, and the RE-4 reenlistment code. 
JFR, denoting a separation for a physical disability that did not exist prior to entry on active duty but 
that does not entitle the member to a disability retirement or severance pay, and either the RE-3P or 
RE-4 reenlistment code. 

• 
• 

• 

• 

at the duty station overnight immediately prior to performing duty or between periods 
of duty if commuting from the reservist’s residence is unreasonable.15  Such reservists 
were entitled to severance pay if their disability was rated at less than 30 percent.16  The 
applicant has not proved that his bipolar disorder was the proximate result of his per-
formance of active duty or inactive duty training.  Therefore, he has not proved that he 
should  have  been  assigned  a  disability  rating  and  awarded  a retirement  or  severance 
pay when he was discharged in May 19xx. 

 
10. 

The applicant has also alleged that he was suffering from bipolar disorder 
during  his  two  extended  periods  of  active  duty  in  the  summers  of  19xx  and  19xx.  
Reservists such as the applicant who had less than eight years of active service and who 
were serving on active duty for periods of at least 30 days in 19xx and 19xx were enti-
tled  to  a  disability  retirement  if  their  permanent  disability  was  rated  at  30  percent  or 
greater on the DVA’s schedule and was the proximate result of their military service.17  
Reservists with less than eight years of active service were entitled to severance pay if 
(a) they incurred the disability while entitled to basic pay and either (b)(1) the disability 
was  rated  at  less  than  30  percent  and  was  the  proximate  result  of  performing  active 
duty or (b)(2) the disability was rated at 30 percent or greater.18  Although according to 
Dr. Q, the applicant told him that his being AWOL in the summer of 19xx was the result 
of an irrational belief that he could escape boot camp by swimming across a very wide 
body of water, the Board finds that this report is insufficient by itself to prove that the 
applicant incurred his bipolar disorder while entitled to basic pay during the summer of 
19xx.    Moreover,  although  the  applicant  may  have  first  been  diagnosed  with  bipolar 
disorder  in  the  summer  of  19xx  while  he  was  serving  on  active  duty  for  on-the-job 
training, this fact would not prove that he incurred his bipolar disorder while entitled to 
basic pay in the summer of 19xx.  Nor has he proved that his bipolar disorder was at 
least  30-percent  disabling  at  that  time  or  that  his  bipolar  disorder  was  the  proximate 
result  of  his  military  service.    Therefore,  the  Board  finds  that  the  applicant  has  not 
proved that if he had been diagnosed by the Coast Guard with bipolar disorder in the 
summer of 19xx or 19xx, while he was serving on active duty for periods of greater than 
30 days, he would have been entitled to either a disability retirement or severance pay. 

 
11. 

Because the applicant has proved by a preponderance of the evidence that 
he  was  suffering  from  bipolar  disorder  when  he  was  discharged  for  shirking  in  May 
19xx and because his bipolar disorder likely caused or greatly contributed to his failure 
to drill, the Board finds that the applicant’s discharge should be upgraded to honorable.  
His conviction by summary court-martial in the summer of 19xx does not preclude an 
honorable discharge under Article 12-B-2 of the Personnel Manual, and his record and 
                                                 
15  10 U.S.C. § 1204. 
16  10 U.S.C. § 1206. 
17  10 U.S.C. § 1201. 
18  10 U.S.C. § 1203. 

the letter from his CO indicate that, other than the one incident at boot camp, he per-
formed quite well when he was able to participate.  In addition, the Board finds that if 
the Coast Guard had known of his bipolar disorder, he would have been discharged by 
reason of physical disability under Article 12-B-15 of the Personnel Manual. 
 
 
12.  Accordingly, the applicant’s request should  be granted in part.  His dis-
charge should be upgraded to honorable; the authority for his discharge should be Arti-
cle 12-B-15 of the Personnel Manual; and his narrative reason for discharge should be 
“Physical Disability,” instead of “Misconduct.”  It is unclear from the record whether 
his  bipolar  disorder  pre-existed  his  enlistment  in  the  Reserve,  which  would  call  for  a 
JFM  separation  code, or  began  sometime thereafter,  which  would  call  for  a  JFR  code.  
Since there is no evidence in the record that his bipolar disorder pre-existed his enlist-
ment and the DVA has decided that his condition is service-connected, the Board finds 
that the most appropriate separation code for the applicant is JFR, which indicates that 
he was discharged because of a physical disability but was not entitled to retirement or 
severance pay; and his reenlistment code should be RE-3P.19  However, the records con-
cerning his summary court-martial should remain unchanged. 
 
 

                                                 
19  Under Chapter 2.C. of COMDTINST M1900.4C, members separated with the JFR code could receive 
either  an  RE-4  code,  which  prohibits  reenlistment,  or  an  RE-3P  code,  which  means  that  the  member 
performed  well  and  may  reenlist  if  he  can  prove  that  his  disability  no  longer  exists.  Under  current 
standards, all members discharged because of a physical disability not caused by their own misconduct 
or willful neglect receive an RE-3P code. 

 

ORDER 

 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for 

correction of his military record is granted in part as follows: 
 

His  May  19xx  discharge  shall  be  corrected  to  honorable;  the  authority  for  his 
discharge  shall  be  corrected  to  Article  12-B-15  of  the  Personnel  Manual;  his  narrative 
reason  for  separation  shall  be  corrected  to  “Physical  Disability”;  his  separation  code 
shall be corrected to JFR; and his reenlistment code shall be corrected to RE-3P.   

 
The Coast Guard shall issue him a new discharge certificate reflecting his honor-

able character of service. 

 
These  corrections  do  not  entitle  him  to  either  severance  pay  or  a  disability 

 
 

 
 

 
 

 
 

retirement, and no other relief shall be granted. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Kathryn Sinniger 

 

 

 
Astrid Lopez-Goldberg 

 

 

 

 
Michael K. Nolan 

 

 

 

 

 

 

 

 

 

Memorandum 

 
 

 Subject:  ADVISORY OPINION IN CGBCMR 

DOCKET NO. 2002-054 (XXXXX) 

  From:  Chief Counsel, U.S. Coast Guard  

Date: 

Reply to 
Attn. Of: 

 
5420/3 
G-LMJ 
CDR Vachon 
X7-0116 

To:  Chairman, Board for Correction 

 
                of Military Records (C-60) 

Ref:  (a)  Applicant's DD Form 149 dated 16 May 1997 

 

 
1.  

I  adopt  the  analysis  provided  by  Commander,  Coast  Guard  Personnel  Command  in 
enclosure (1) and request you accept his comments and my following additional comments as 
the Coast Guard’s advisory opinion recommending denying relief. 

2.  Summary of Analysis: The Board should deny relief in this case for lack of timeliness or 
alternatively, lack of merit.  The Applicant seeks “revocation of summary court marshal (sic) in 
which I was confined 7 days; forfeiture of $200.00 per month for one month and reduction to pay 
grade E-1.”  Applicant’s General Discharge (under honorable conditions) and RE-4 code were 
properly assigned and are unrelated to his earlier Summary Court-Martial (SCM).  The only 
basis the Applicant presents for requesting a revocation of the punishment awarded by the SCM 
is an allegation that at the time of the SCM he suffered from bipolar disorder.  There is no 
indication in his Coast Guard records that he suffered from bipolar disorder.  The Applicant has 
produced no evidence demonstrating that the character and nature of his discharge was incorrect, 
nor does the Applicant present any evidence that his bipolar disorder is cause to revoke the 
findings of the SCM.  Therefore, no relief should be granted. 

3.  Summary of the Facts:   

[The Applicant’s BCMR application is dated 16 May 1997 and was originally assigned docket 
number 134-97.  The case was apparently transferred to the Discharge Review Board (DRB) for 
action.  On July 23, 2001 the DRB determined that the case fell outside the DRB’s authority and 
returned the case to the BCMR.  See G-WPM-1 letter 5420 dated 23 July 2001.] 

On 06 June 19xx, the Applicant enlisted in the Coast Guard Reserve for a period of 8 years. 

On 10 August 19xx, the Applicant was found guilty of unauthorized absence (UA) at SCM.  He 
was sentenced to seven days confinement at the Philadelphia Naval Brig, forfeiture of $200.00 
per month for one month and reduction to pay grade E-1. 

On 09 February 19xx, the Applicant was informed by Commanding Officer, Coast Guard 
Reserve Unit (CGRU) Base San Juan that action would be taken to discharge him from the Coast 
Guard.  The basis for the discharge was an “uninterrupted pattern of shirking.” 

On 13 February 19xx, the Applicant provided the Commanding Officer CGRU Base San Juan 
with a written statement.  The Applicant averred in part: “I would like very much to be awarded 
a general discharge, under honorable conditions.” 

On 04 May 19xx, the Applicant was issued a General Discharge Certificate DD Form 257.  The 
Applicant had completed a total 3 years, 10 months and 28 days of his 8-year enlistment.  The 
Applicant was assigned a separation code HKJ and a re-enlistment code RE-4 (not eligible for 
reenlistment).  The HKJ separation code does not exist.  JKD is the appropriate separation code 
for shirking and the record should be changed accordingly. 

On 12 November 1996, the Department of Veterans’ Affairs (VA) awarded the Applicant a 
disability of 30% for service connected bipolar disorder.  The VA determination states that the 
“service records do not show onset during service, however private records show treatment 
during active service interval.”   Some private records (in Spanish) were included in the 
Applicant’s BCMR package, submitted 16 May 1997.  The private records were included and 
referenced in the VA determination.  A report from xxxxxxxxx M.D. shows treatment for 
“features of a paranoid personality from 19xx  to 19xx,” and a report for xxxxxxxxxxx, M.D. 
shows treatment in August 19xx for a bipolar disorder and paranoid personality.20 

4.  Analysis of the Case: 

a.  Applicant failed to submit a timely application and has not provided sufficient reason 

why it is in the interest of justice to excuse the delay. 

(1) Although the Applicant claims that he discovered the alleged error in November 
1996, the record clearly shows that Applicant was or should have been aware of the allegations 
he made in his application within three years of his 10 August 19xx SCM.  Applicant submitted 
his application more than xxx (x) years after the Statute of Limitations expired.21  

(2) Under 10 U.S.C. §1552(b) and further regulations in 33 C.F.R. §52.22, an 
application must be filed within three years of the date the alleged error or injustice was, or 
should have been, discovered.  If an application is untimely, the Applicant must set forth in the 
application reasons why its acceptance is in the interest of justice.  In addition, the Board must 
deny relief unless Applicant presents sufficient evidence to warrant a finding that it would be in 
the interest of justice to excuse the failure to file timely.  In making this determination, the Board 

                                                 
20  Note  that  these  treatments  are  one  and  two  years  after  the  award  of  punishment  by  the  SCM  from 
which the Applicant seeks relief.  
 
21 The Applicant provides no explanation for his alleged discovery of the error in November 1996, other 
than  perhaps  that  was  when  he  received  the  disability  rating  form  the  VA.    From  the  private  records 
provided to the VA, the Applicant discovered or should have discovered the existence of his condition in 
19xx.  See Blocks 9 and 11.b. DD149. 

must consider the reasons for 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).  As discussed infra, 
Applicant has failed to offer substantial evidence that the Coast Guard committed either an 
injustice or error in discharging him with a general discharge based on shirking.  Therefore, the 
BCMR should dismiss this case with prejudice. 

b.  xxxxxx years transpired from the time of the SCM and the Applicant’s initial 

application to the BCMR and should be barred by the doctrine of laches. 

(1) Alternatively, the Board should deny the requested relief on the basis of the 

doctrine of laches.  The Board’s enabling statute, 10 U.S.C. § 1552, provides that the Secretary, 
acting through boards of civilians, may correct a military record “when he considers it necessary 
to correct an error or remove an injustice.”  Thus, the Secretary is not compelled to correct a 
record, but may exercise considerable discretion in determining whether such a correction is 
“necessary” to make the Applicant whole.  In the present case, the Board should decline to grant 
the requested relief based upon the equitable doctrine of laches. See, e.g., Sargisson v. United 
States, 12 Cl. Ct. 539, 542 (1987). 

(2) The Applicant’s allegation that he was improperly awarded punishment by a 

SCM in 19xx because at the time he was suffering from bipolar disorder is the entire basis of his 
claim.  This alleged “error” is not established in the Applicant’s service record, his health record, 
nor is it established by private medical record.  Applicant took no action to correct the alleged 
“error” in 19xx, instead waited more than xxx years to challenge it before the BCMR.  Where an 
Applicant’s unexcused delay has caused substantial prejudice to the government, the claim for 
relief is generally barred under the equitable doctrine of laches. See, e.g., Sargisson v. United 
States, 12 Cl. Ct. 539, 542 (1987).  The relevant period of delay may run even before the 
particular claim accrues, runs independent of any statute of limitations, and may involve periods 
of delay as short as eleven months. Id.  Underlying the laches bar is the fundamental principal 
that equity aids the vigilant; the doctrine prohibits Applicants from delaying their BCMR 
applications, absent circumstances excusing the delay, while the evidence regarding their 
contentions becomes lost, stale, or inaccessible, or while the costs of investigating or correcting 
the matter accumulate.  In the present case, the Coast Guard’s ability to contact key witnesses 
has been severely hampered by the mere fact that they no longer serve in the Coast Guard and by 
the absence of key unit documents that have been destroyed or disposed of per paperwork 
disposition regulations. See, e.g., Paperwork Management Manual, COMDTINST M5212.12, 
(Most documents may be destroyed after 3 years).  Therefore, considering the substantial delay 
between the “error” and date of application in this case and that the Applicant has the burden of 
production and proof, the Board should dismiss Applicant’s claim with prejudice. 

There was also no injustice committed in discharging Applicant from the Coast Guard.  
Applicant committed frequent acts of shirking as detailed in Commanding Officer, CGRU Base 
San Juan letter 1910 dated 09 February 19xx.  His actions could reasonably be expected to bring 
discredit upon the Coast Guard.  Additionally, there is documented evidence that his command 
only acted after attempting to assist him in resolving these matters.  In short, there is no evidence 
that the Coast Guard treated Applicant unjustly.  This case manifestly does not constitute 
“treatment by the military authorities that shock the sense of justice.”  See, Sawyer v. United 

States, 18 Cl. Ct. 860, 868 (1989) rev’d on other grounds, 930 F.2d 1577 (citing Reale v. United 
States, 208 Ct. Cl. 1010, 1011 (1976)). 

There being no error or injustice to which the Applicant can point, there is no basis for changing 
the character or nature of his discharge, nor is there a basis for revoking the punishment awarded 
by the SCM.  Applicant properly received a general discharge and an RE-4 reenlistment code.  
The Separation Program Designator (SPD) code HKJ should be changed to JKD, the proper coed 
for shirking. 

Recommendation:  This application should therefore be denied for lack of timeliness, or 

5. 
alternatively, it should be denied for lack of merit.  The Applicant’s separation code should be 
changed from HKJ to JKD. 

 
 
 
 
 
 
Encl: 

 

 

 

 

        By direction 

GENELLE T. VACHON 

(1)  CGPC memorandum 5420 undated 
(2) Applicant’s DD Form 149 dtd 16 May 1997 
(3)  Applicant's Service Record 

MEMORANDUM 
 
From
: 

G. W. PALMER 
CGPC-c 

 
To: 
 

Commandant  
(G-LMJ) 

Reply 
to 
Attn of: 

ENS Crespo 
7-6969 

Subj:  PROGRAM INPUT ON CGBCMR APPLICATION (xxxxx) 
 
Ref: 
 
1.  1.  Comments on the application contained in reference (a) are attached as enclosure (1). 

(a) CGBCMR Application 2002-054 

2.  2.  I recommend no relief be granted.  However, the Applicant’s record should be corrected 

to change his separation code from HKJ to JKD. 

3.   

4.  # 

(1) Comments concerning CGBCMR Application 2002-054 

5.   
6.   
 
Enclosures
: 
 
 
 
 
 

 

 

 

 

 

 

 

 

 

 

 

 

Enclosure 1 - CGBCMR 2002-054 

for 

in 

pay 

RELIEF REQUESTED BY APPLICANT: 
 
1.  The Applicant requests “revocation” of Summary-Court Martial sentence awarded 
in  August  19xx,  in  which  he  was  confined  for  seven  days,  forfeited  $200.00  per 
month 
E-1. 
 

one  month 

reduced 

and 

grade 

to 

2.  The  Applicant’s  request  specifies  relief  concerning  his  Summary  Court  Martial 
sentence.   Though not specifically requested, we assume the Applicant also  wants 
his General Discharge under honorable conditions upgraded to Honorable, based on 
the  presumption  that  his  misconduct  was  caused  by  his  mental  disability.  
 

Note:    The  Applicant’s  BCMR  request  is  dated  May  16,  1997  and  was  originally 
assigned docket number 134-97.  Apparently the case was transferred to the Discharge 
Review Board (DRB) for action.  The DRB eventually returned the case to the BCMR for 
action.    
 
APPLICANT’S STATED BASIS FOR RELIEF: 
 
1.  The Applicant alleges that he incurred a mental disability (bipolar disorder) while 
serving in the Coast Guard Reserve that caused him to go AWOL and shirk his IDT 
duty, which led to his discharge in 19xx for misconduct. 

 
MATTERS OF RECORD: 
 
1.  The application is not timely. 
 
2.  June 6, 19xx: Per Form CG-3301 (Enlistment Contract – U.S. Coast Guard) Applicant 

enlisted in the Coast Guard Reserve for a period of 8 years. 

 
3.  June  8,  19xx:  Per  Form  CG-3312A  prepared  September  10,  19xx,  Applicant  was 
found physically qualified for enlistment and retention in the Coast Guard Reserve.  
Reserve members are required to undergo quadrennial physicals to verify continued 
medical  fitness  to  perform  active  duty.    This  is  the  only  document  related  to  the 
Applicant’s  medical  status  in  the  Coast  Guard  that  could  be  located.    Applicant’s 
Coast Guard Medical Record could not be located.   

 
4.  August  10,  19xx:  Per  Form  CG-3304  (Court  Memorandum),  Applicant  was  found 
guilty of AWOL at a Summary Court Martial.  He was sentenced to seven days of 
confinement to the Philadelphia Naval Brig, forfeiture of $200.00 per month for one 
month  and  reduction  in  pay  grade  to  E-1.    No  record  of  the  Court  Martial 
proceedings were presented for review. 

 
5.  Per the Reserve Administration and Training Manual, COMDTINST 11-B-2 in effect 

at  the  time  of  Applicant’s  service,  Reserve  members  are  obligated  to  report  any 
medical  conditions  to  their  chain  of  command  that  may  render  them  unable  to 
perform their military duties.   

 
6.  February  9,  19xx:  Per  letter  1910  from  Commanding  Officer,  CGRU  (Coast  Guard 
Reserve  Unit)  Base  San  Juan  to  Applicant,  Subj:  DISCHARGE,  Applicant  was 
informed of action taken to discharge him from the Coast Guard.  This action was 
based on an “…uninterrupted pattern of shirking.  November 2, 19xx is the date of 
your last drill in the unit for a total of 24 absences.”  Applicant was advised that he 
could submit a statement and that he could disagree with the recommendation for 
his discharge.  

 
7.  March  19xx:  Per  letter  1910  (First  Endorsement)  from  Applicant  to  Commanding 
Officer,  CGRU  Base  San  Juan,  Subj:  DISCHARGE,  Applicant  acknowledged  the 
Commanding Officer’s action to discharge him from the U. S. Coast Guard, and did 
not object.  Applicant attached a statement to this letter dated February 13, 19xx that 
read  in  part,  “I  would  like  very  much  to  be  awarded  a  general  discharge,  under 
honorable conditions.” 

 
8.  May  4,  19xx:  Per  letter  1910  from  Commandant  to  Commander,  Seventh  Coast 
Guard  District  (rsa),  Subj:  AUTHORITY  TO  DISCHARGE  xxxxxxxxxxxxxxxxxxxx, 
USCGR,  Applicant  was  directed  to  receive  a  General  Discharge  under  honorable 
conditions by reason of misconduct (shirking).  

 
9.  May  4,  19xx:  Per  Form  CG-3307  (Administrative  Remarks  Sheet),  Applicant  was 
discharged  by  reason  of  misconduct  (shirking).    Applicant  was  issued  a  general 
discharge  certificate  DD  Form  257  CG.    Applicant  completed  a  total  of  3  years  10 
months and 28 days, of his 8-year enlistment contract.  Applicant’s separation code 
was  HKJ  and  reenlistment  code  was  RE-4  (not  eligible  for  reenlistment).    The 
separation  code  HKJ  does  not  exist.    The  separation  code  used  to  discharge 
personnel for shirking is JKD.    

 
10. November 12, 1996: Department of Veteran’s Affairs (VA) rating decision document.  
Applicant  was  awarded  a  VA  disability  rating  of  30%  for  a  service  connected  bi-
polar  disorder.    Decision  further  states  that    “Service  records  do  not  show  onset 
during  service,  however  private  records  show  treatment  during  active  service 
interval.” 

 
11. May 16, 1997: Per Applicant’s BCMR application, Applicant alleges that he “suffered 
at the time of the alleged offense (AWOL 25 minutes of August 3, 19xx) a disabling 
condition  called  bipolar  disorder.”    There  is  no  documentation  within  Applicant’s 
entire service record that suggests Applicant complained to Coast Guard officials or 
medical  authorities  of  symptoms  associated  with  bipolar  disorder  or  any  other 

medical problem. 

 
12. July  3,  1997:    VA  rating  decision  document.    Applicant’s  30%  disability  rating 
continued by the VA.  Decision further states “Service medical records for the period 
entrance  examination  05-25-xx  to  discharge  do  not  show  onset  during  service.”  
Documentation of treatment by private physicians during his enlistment is cited, but 
is not included in Applicant’s BCMR package.    

 
CONCLUSIONS:    
 
1.  Applicant’s summary court martial record was not provided.  We cannot determine 
if  there  were  any  substantive/procedural  administrative  errors  committed  in  the 
proceedings.  There is no evidence in the record that indicates whether Applicant’s 
mental condition was an issue or considered during the court martial proceedings.     
 

2.  Applicant’s misconduct discharge for shirking was not related to his summary court 

martial conviction.   

 
3.  There  is  no  documentation  in  Applicant’s  Coast  Guard  service  record  that  he  was 
ever evaluated for a mental condition or complained of symptoms associated with 
bipolar disorder during his enlistment. He failed to report a medical condition for 
which  he  was  seeking  treatment  while  in  a  non-duty  status  to  his  unit  chain  of 
command,  as  required  by  Coast  Guard  regulations.    Even  during  the  separation 
process,  there  is  no  evidence  that  he  attempted  to  inform  the  Coast  Guard  of  any 
medical or psychiatric condition that might explain his behavior.   

 
4.  The documentation Applicant now presents with his application about his condition 
does not provide evidence that his shirking of duties was the cause thereof, nor does 
he  present  evidence  that  his  condition  showed  onset  during  enlistment,  or  that  it 
was incurred during a period he was on active duty.   In its rating decision the VA 
concludes  that  his  disability  is  service  connected,  because  he  received  treatment 
from  private  physicians  during  his  Reserve  enlistment.    But  the  VA  makes  no 
finding that his disability was incurred during an active duty period or caused by 
his military service.   

 
5.  The  Applicant  received  full  due  process  during  the  separation  process  and  was 
appropriately separated.  The Applicant made no objection to the characterization of 
his  discharge  or  present  information  concerning  his  medical  condition  that  could 
possibly explain his misconduct.    

 
6.  Applicant  is  encouraged  to  continue  to  seek  assistance  through  the  VA  to  receive 

any benefits for which he may be eligible.  

 

RECOMMENDATION: 
 
1.  I recommend no relief be granted. 
   
2.  The Applicant’s record should be corrected to change his separation code from HKJ 

to JKD.