DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-056 
 
Xxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxx 

 

 
 

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. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated January 16, 2003, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

The applicant asked the Board to remove from his record all information indicat-
ing that he was absent without leave (AWOL) when he sustained a head injury in a car 
accident on December 24, 1972.  The Coast Guard’s determination that he was AWOL at 
this  time  has  prevented  him  from  receiving  medical  benefits  for  the  injury  from  the 
Department of Veterans Affairs (DVA). 

 
The applicant alleged that the records indicating that he was AWOL are false and 
unjust.  He alleged that the Coast Guard dismissed the charges of willful misconduct 
and being AWOL and that he was honorably retired from the service on May 30, 1973.  
He alleged that he did not discover the error and injustice in his record until April 24, 
1998. 

 
In  support  of  his  allegations,  the  applicant  submitted  a  transcript  of  a  hearing 
before the Board of Veterans’ Appeals on October 26, 2000.  At the hearing, the appli-
cant  stated  that  he  had  been  raised  by  his  grandmother  on  a  ranch  in  New  Mexico 

without  electricity  or  running  water.    He  stated  that  on  October  29,  1972,  he  was 
assigned  to  mess  duty  on  an  icebreaker  that  was  in  dock  at  Long  Beach,  California, 
undergoing repair, when he “took it upon [him]self to leave when [he] heard that [his 
grandmother] was sick and needed help” preparing the ranch for winter.  He alleged 
that before leaving, he “told a couple [of] chief petty officers,” including his supervisor, 
that he “may have to be leaving suddenly” because his grandmother was ill.  He alleged 
that  he  cannot  remember  his  supervisor’s  reply,  except  that  his  supervisor  shrugged.  
He alleged that other officers reacted in this same manner when he told them he might 
need to leave.  Therefore, he assumed that it was “okay to leave.”  The applicant alleged 
that he had never used leave before and had accrued 30 days because he was saving it 
up since his “grandmother was always in bad health and needed care.”  He alleged that 
he  had  told  his  supervisor  where  he  would  be  and  that  he  assumed  that  the  Coast 
Guard  would  deduct  the  time  he  was  absent  from  his  leave  total.    He  alleged  that 
because he was young, he did not know that there were procedures to follow before he 
could take leave. 

 
Regarding the timing of the car accident, the applicant stated that he had taken 

care of his grandmother and the ranch but 

 
was  coming  back  down  before  Christmas,  because  [he]  wanted  to  go 
ahead and go to the Coast Guard office and say that [he] had been gone 
for a while, and explain to ‘em what the reason was, that’s when [he] went 
down—[he] didn’t stay with [his] brother in Albuquerque, [he] was up in 
Pecos.    [He]  came  down  and  [he]  stayed  with  some  friends  there  at  the 
Harris Canyon, and that’s when the accident happened.  ‘Cause [he] did 
want to go down—   
 
The applicant’s representative pointed out that he had not only accrued 30 days’ 
leave but was entitled to an additional 30 days of leave for the next year.  He argued 
that since the applicant had 60 days of leave to use, he was not AWOL when he injured 
himself in the car accident in December 1972, but on leave. 
 

SUMMARY OF THE RECORD 

 

On November 29, 1971, the applicant enlisted in the Coast Guard for four years.  
He had been born in Albuquerque in July 1951, and he provided an address in that city 
as his home of record.  He was working for a construction company in Albuquerque at 
the time of his enlistment. 

 
Upon completing training in February 1972, the applicant was assigned to a cut-
ter as a seaman apprentice.  Leave Records in the applicant’s record indicate that in Feb-
ruary 1972, he applied for and was granted eight days of leave and that, in June 1972, he 
applied for and was granted seven days of leave. 

 
Entries  in  the  applicant’s  record  indicate  that  he  did  not  show  up  for  work on 
November 2, 1972, and that at the time, his intentions were “unknown.”  On November 
13, 1972, his command reported him as a wanted absentee.  On December 1, 1972, he 
was reported as a deserter.   

 
Hospital records indicate that on December 23, 1972, the applicant was admitted 
to an Albuquerque hospital with a skull fracture incurred in a car accident.  He was dis-
charged from the hospital on December 29, 1972. 

 
On January 8, 1973, a recruiting station in Albuquerque sent a message to Head-
quarters  stating  that  the  applicant  had  surrendered  himself  after  having  been  AWOL 
from the cutter since October 29, 1972.  On January 9, 1973, he was sent back to Long 
Beach.  From January 10 to February 12, 1973, he was hospitalized due to the injuries he 
had received in the car accident.   

 
On  January  9,  1973,  the  applicant’s  command  convened  an  informal  Board  of 
Investigation into his unauthorized absence and the circumstances of the accident.  On 
February 2, 1973, the investigator reported that the applicant was AWOL at the time of 
the accident, which took place “near his place of residence at Albuquerque.”  The inves-
tigator  reported  that, after  having  been  advised  of  his  rights  on  January  18,  1972,  the 
applicant told the investigator that he had been living with friends in Albuquerque and 
was “drinking with friends previous to [his] accident.”  He borrowed a friend’s car to 
go  to  Santa  Fe  but,  “[j]ust  after  departing,  [he]  struck  a  decorative  archway  on  a  dirt 
road and went off the road.”  The investigator stated that at the Albuquerque hospital, a 
“laboratory  toxicology  was  performed  and  indicated  a  reading  of  103  milligrams  per 
cent in the [applicant’s] blood stream.”  The New Mexico State Police told the investi-
gator that any reading of 100 milligrams or higher was considered “intoxicated.”  The 
Board of Investigation concluded that the applicant’s accident, head injury, and disabil-
ity were caused by his intoxication while AWOL and recommended that he be charged 
for misconduct.   

 
On February 8, 1973, the Coast Guard convened an Initial Medical Board (IMB) 
to evaluate his condition.  The IMB reported that, after having been hospitalized with a 
head injury caused in a car accident, the applicant “turned himself in as a deserter” but 
was again hospitalized because he had unstable blood pressure and “had on one or two 
occasions blacked out.”  The IMB found him unfit for duty as it was determined that 
even a gentle bump on the damaged part of his head could cause serious harm.  The 
IMB recommended that the applicant be further evaluated by a Central Physical Evalu-
ation Board (CPEB).  He was sent home to await orders. 

 

On February 9, 1973, the applicant’s attorney wrote a letter1 to the District Com-
mander complaining that he had not been permitted to cross-examine the people inter-
viewed by the investigator.  He also argued that the facts of the case did not prove that 
the  applicant’s  injuries  were  caused  by  “gross  negligence,”  which  he  argued  was  a 
minimum requirement for a finding of misconduct under paragraph 0406 of the Coast 
Guard Supplement to the Manual for Courts-Martial.  He argued that factors other than 
the  applicant’s  intoxication,  such  as  his  unfamiliarity  with  the  car,  the  lack  of  street 
lighting, and the condition of the road, could have caused the accident. 

 
On February 14, 1973, in response to the letter from the applicant’s counsel on 
February 9th, the District Commander ordered the investigator to reinterview the wit-
nesses against the applicant so that his counsel could “effectively take advantage of the 
rights of a party” to cross-examine them.  On February 23, 1973, the investigator report-
ed that he had reinterviewed the witnesses in the presence of the applicant’s counsel, 
who  cross-examined  them.    The  investigator  further  stated  that  the  Board  of  Investi-
gation had again concluded that the accident was caused by the applicant’s intoxicated 
state and that his injuries were “not incurred in the line of duty.”   

 
On  February  26,  1973,  in  response  to  the  investigator’s  report,  the  applicant’s 
counsel submitted a letter reiterating his argument that the circumstances of the acci-
dent did not amount to “gross negligence.” 

 
On  March  14,  1973,  the  District  Commander  forwarded  the  reports  of  the  IMB 
and of the Board of Investigation to Headquarters. He had approved the investigator’s 
findings and recommendations, including the finding that the applicant’s injury “was 
not in the line of duty and was due to the member’s misconduct.”  The District Com-
mander stated that “[g]iven, as counsel admits, the intoxicated condition of the [appli-
cant], it appears to be the grossest deviation from the standard of care required for such 
an  intoxicated  person  to  drive  a  vehicle  with  which  he  is  unfamiliar,  on  a  road  with 
which  he  is  unfamiliar,  at  night  in  snowy  conditions.    However,  the  circumstance  of 
intoxication alone would be adequate to support a gross negligence finding, requiring a 
misconduct determination.” 

 
On March 27, 1973, the CPEB convened and found that the applicant was 30 per-
cent disabled by an injury incurred not in the line of duty and due to intentional mis-
conduct in that  his actions “were taken in reckless disregard of the safety of the evaluee 
and others exposed to him, and was of such a degree as to constitute gross negligence 
and  ‘intentional  misconduct’  as  defined  in  Article  17-A-14  of  [the  Personnel  Manual].  
The  members  further find  that  the  evaluee’s  injuries  were  not  directly  caused  by  any 
intervening event but rather were proximately and directly caused by the gross negli-

                                                 
1 No copy of this letter appears in the applicant’s military record.  However, the content of the letter is 
summarized in a memorandum by the District Commander. 

gence and intentional misconduct of the evaluee.”  The CPEB recommended that he be 
discharged without severance pay.  On March 29, 1973, after consulting with his attor-
ney,  the  applicant  accepted  the  CPEB’s  findings  and  recommended  disposition  and 
waived his right to a hearing before a Formal Physical Evaluation Board (FPEB).  The 
CPEB report we reviewed by the Physical Review Council and forwarded to the Chief 
Counsel for legal review. 

 
On April 17, 1973, the Chief Counsel of the Coast Guard signed a Final Action by 
Reviewing Authority for the report of the Board of Investigation, in which he stated the 
following, in pertinent part: 

 
[T]here is no affirmative showing that his intoxication was the proximate 
cause of the accident in which he sustained his injury.  Absent clear and 
convincing evidence of grossly negligent behavior, we feel that all doubts 
in this matter must be resolved in [the applicant’s] favor and that a mis-
conduct finding is not appropriate under these circumstances.   
 
However,  when  his  injury  was  incurred,  [he]  was  in  an  AWOL  status, 
having been absent from his duty station without authorization since 29 
October 1972.  As outlined in Section 0406e. of the CG Supp. [to the Man-
ual for Courts-Martial], a finding of “not incurred in line of duty” will be 
made when an injury is incurred by a member during a period of unau-
thorized absence which materially interferes with the performance of his 
military duties.  Generally, any absence in excess of 24 hours is considered 
to be such a material interference … . 
 
Hence, from the facts as reported, we find that [the applicant’s] … injuries 
were not incurred in the line of duty and were not due to his own mis-
conduct. 
 
On April 25, 1973, the Chief Counsel reviewed the report of the CPEB and stated 
that, to be consistent with his April 17th determination about the findings of the Board 
of  Investigation,  he  could  not  agree  with  the  CPEB’s  conclusion  that  the  applicant’s 
injuries  were  caused  by  “misconduct.”    However,  he  stated,  since  the  applicant  was 
AWOL at the time and his injuries were clearly not incurred in the line of duty, there 
was  no  impediment  to  his  being  discharged  without  severance  pay  or  retirement  in 
accordance with the CPEB’s recommendation.  On April 27, 1973, the findings and rec-
ommendations of the CPEB, amended in accordance with the Chief Counsel’s determi-
nation, received final approval by the rear admiral serving as the delegate of the Com-
mandant.  

 
On May 1, 1973, the Commandant ordered the applicant’s command to discharge 
him by reason of physical disability in accordance with Article 12-B-9 of the Personnel 

Manual.  He also ordered the command to advise the applicant regarding his rights and 
benefits as a veteran. 

 
On May 17, 1973, the applicant was taken to mast and convicted of unauthorized 
absence from November 2, 1972, to January 8, 1973.  The charge of desertion was dis-
missed.  He was issued a letter of reprimand, and his end of enlistment and pay base 
date were adjusted to account for the days he was AWOL. 

 
On May 30, 1973, the applicant was honorably discharged from the Coast Guard 
because of his physical disability.  His command assigned him an RE-3P reenlistment 
code, making him eligible to reenlist if he recovered from his disability. 
 

VIEWS OF THE COAST GUARD 

 
 
On August 29, 2002, the Chief Counsel submitted an advisory opinion in which 
he recommended that the Board deny relief in this case.  He attached to his advisory 
opinion a memorandum on the case prepared by the Coast Guard Personnel Command 
(CGPC).  These documents are attached to this Final Decision below. 
  

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  September  3,  2002,  the  BCMR  sent  the  applicant  copies  of  the  views  of  the 
Coast Guard and invited him to respond within 15 days.  The applicant requested an 
extension and responded on September 26, 2002.  He argued that there is no evidence in 
his record that he was ever notified in writing of the proposed action against him and 
the possible effects of his discharge.  He alleged that the charge of unauthorized absence 
against him was dismissed by the Coast Guard and that all other charges against him 
were dismissed. 
 

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: 
 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

1. 
§ 1552.  
 
2. 

Under 10 U.S.C. § 1552(b), an application to the Board must be filed within 
three years after the applicant discovers the alleged error in his record.  The applicant 
alleged that he did not know his record was in error until April 24, 1998.  However, he 
was discharged and sent his DD 214 on May 30, 1973.  Moreover, the record indicates 
that  he  knew  he  was  considered  to  be  AWOL  from  November  2,  1972,  to  January  8, 
1973, and that, prior to being discharged, he was advised about the consequences of the 
CPEB’s  recommendations  by  his  counsel.    In  addition,  in  accordance  with  Arens  v. 
United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992), and Sanders v. United States, 594 F.2d 
804,  813  (Ct.  Cl.  1979),  the  Board  presumes  that  the  applicant’s  command  obeyed  the 
Commandant’s May 1, 1973, order to advise him of his rights and benefits as a veteran 
before discharging him.  Therefore, the Board finds that he knew or should have known 
of the AWOL determination, the nature of his discharge, and its consequences no later 
than 1973, and 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. Allen v. 
Card, 799 F. Supp. 158, 164 (D.D.C. 1992).  The applicant did not explain why he delayed 
applying to the Board until 2002.  The record suggests that he delayed applying until he 
was refused medical benefits for his head injury by the DVA. 
 

4. 

The Board’s cursory review of the record indicates that the applicant was 
properly  found  to  have  been  AWOL  from November  2,  1972,  to January  8,  1973.    He 
was reported absent from work on November 2, 1972; reported as a wanted absentee on 
November 13, 1972; and reported as a deserter on December 1, 1972.  He submitted no 
evidence other than his own self-serving statements that he had told petty officers that 
he was leaving to take care of his sick grandmother; and the reports indicate that his 
intentions in leaving were unknown.   

 
5. 

The applicant’s allegations that he did not know the rules about applying 
for leave and that he believed that he could casually take leave are proved false by two 
leave applications in his record showing that he properly applied for and was granted 
eight days of leave in February 1972 and seven days of leave in June 1972.  In addition, 

his allegation that he had never taken leave and therefore was entitled to take 60 days of 
leave is proved false by these same two leave statements. 

 
6. 

Although  the  applicant  alleged  that  he  was  never  notified  of  the  conse-
quences of his pending discharge, the record contains ample evidence that he knew he 
had  been  AWOL  and  was  accorded  all  due  process  in  both  the  administrative  and 
medical proceedings that led to his discharge.  In addition, the record indicates that he 
was formally found guilty of unauthorized absence at a captain’s mast and that only the 
charge of desertion was dismissed. 

 
7. 

8. 

The  Board’s  review  of  the  record  has  revealed  no  evidence  of  error  or 
injustice committed by the Coast Guard in documenting his unauthorized absence from 
November 2, 1972, to January 8, 1973, and in discharging him for unfitness because of 
the  injury  he  sustained  while  AWOL.    The  Board  finds  no  merit  whatsoever  in  the 
applicant’s allegations. 
 
 
and lack of merit. 
 
 
 
 
 
 

Accordingly, the application should be denied because of its untimeliness 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 
 

ORDER 

 

The  application  of  former  SA  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for 

 
 

 
 

 
 

correction of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Barbara Betsock 

 

 

 

 
 Harold C. Davis, M.D. 

 

 

 

 
 Cynthia B. Walters 

 

 

 

 

 

 

 

 

 

 
 
 

 

 Subject:  ADVISORY OPINION IN CGBCMR  
DOCKET NO. 2002-056 (XXXXXX) 

  From:  Chief Counsel, U.S. Coast Guard 

To:  Chairman, Board for Correction 

 
                of Military Records (C- 60                

 
Ref:   (a) Applicant’s DD Form 149 filed 5 March 2002 
       (b) Manual for Courts-Martial 

Memorandum 

Date: 

Reply to 
Attn. of: 

 
5420/3 
G-LMJ-1 
CDR Vachon 
x70116 

 

 

 

1.  Please accept enclosure (1) and the following comments as the Coast Guard’s advisory 
opinion recommending denying relief in the subject case. 

2.  Summary of the Case: In May 1973, Applicant was discharged by reason of physical 
disability due to injuries he sustained in an automobile accident.  Applicant now requests 
that his record be corrected to reflect that his physical disability was incurred “in the line of 
duty” insofar as the charge of “unauthorized absence” was dismissed by the Coast Guard 
due to the fact that the Applicant was home on leave at the time of the accident.  Contrary to 
Applicant’s allegation, it was the charge of “desertion” not “unauthorized absence” that was 
removed from his record.  The desertion charge was removed due to his conviction for the 
lesser included offense of “unauthorized absence.”  See, CG-3312 dated 17 May 1973 and 
Part IV, ¶3, ¶9.d.of reference (b). There is record evidence that 
Applicant was taken to Captain’s mast and found guilty of Article 86, UCMJ. 
See, Personnel Action Sheet, CG-3312 dated 17 May 1973.  There is no evidence that 
Applicant’s unauthorized absence was dismissed or that there was any error or injustice in 
his nonjudicial punishment.  And, with respect to the transcript testimony that Applicant 
submits of a hearing before the Board of Veteran’s Appeals dated 26 October 2000, such 
transcript bears no evidence, other than the Applicant’s own self-serving memory, on the 
question of whether the Applicant’s unauthorized absence was ever excused or otherwise 
dismissed.  

3.   Summary of the Facts: See Enclosure (1), Matters of Record.  

4.  Analysis: The Board should deny relief in this case because Applicant failed to prove 
that the Coast Guard committed either an error or injustice that would merit a waiver of the 
Statute of Limitations.  Furthermore, Applicant has failed to prove that the Coast Guard 
dismissed his unauthorized absence.  To the contrary, there is record evidence that the 
Applicant was taken to nonjudicial punishment (NJP) also knows as Captain’s mast.  
Additionally, the record shows that the Applicant was afforded all due process attending to 

 
his discharge by reason of physical disability pursuant to the applicable CG PERSMAN 
provisions.   

a.  Applicant failed to submit a timely application and has not provided any basis or 
reason why it is in the interest of justice to excuse the delay.  Alternatively, a cursory review 
of the merits of this case reveal that no error or injustice occurred.  The record shows that 
Applicant was or should have been aware of the allegations he made in his application 
within three years of his May 30, 1973, discharge date.  On his DD214 certificate, block 11, 
the Applicant’s reason and authority for discharge is listed as “12-B-9, CG PERSMAN 
[and] COMDT (GPE) message 012033Z May 73.”  That provision of the PERSMAN 
authorized discharges based on a disability that was neither incurred in nor aggravated by a 
period of active military service.  Additionally, the Applicant signed an acknowledgement 
stating that he had been advised by his counsel regarding acceptance or rejection of the 
findings and recommended disposition of the CPEB and accepted those findings in lieu of a 
hearing before a formal physical evaluation board.  See CG-4809 dated 29 March 1973.  In 
those findings, the CPEB found “that the injuries sustained by the [Applicant] were not 
incurred in the line of duty  . . . [and] were sustained as the foreseeable, direct and proximate 
result of the [Applicant’s] . . .  intentional misconduct.”2  See CG-4808 dated 28 March 
1973.  In light of the aforementioned documents, the Applicant knew or should have known 
of the alleged errors or injustice pertaining to his discharge no later than May 1973.  
Therefore, Applicant submitted his application almost twenty-nine (29) years after the 
Statute of Limitations expired.3 

(1) 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 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).   

(2) Based on the Applicant’s submission in support of his application, it seems 
that Applicant is under the impression that he never received nonjudicial punishment for his 
unauthorized absence.  However, there is documentary evidence recording the date and 
disposition of the Captain’s mast.  See, Personnel Action Sheet, CG-3312 dated 17 May 
1973.  The Applicant’s bare assertion that the Coast Guard dismissed his unauthorized 
absence is not enough to rebut the record evidence.   

b.  The Board should not find the Applicant’s uncorroborated testimony at a hearing 
before the Veteran’s Administration more than twenty-five years after the fact as sufficient 

                                                 
2 In the Chief Counsel’s endorsement of the CPEB and informal investigation report, he disagreed 
with the finding that the Applicant’s injuries were sustained due to misconduct but agreed that the 
injuries  were  not  incurred  in  the  line  of  duty.    See,  G-LGL  memo  1850  dated  25  Apr  1973  and 
“Action by Final Reviewing Authority” dated 17 April 1973.   
3 The Applicant failed to explain this long delay as required in Block 11.b. of his DD149. 

 

 
evidence that the Coast Guard dismissed the Applicant’s unauthorized absence.  To do so 
would be unfair and contrary to the equitable 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). 

Applicant took no action to correct the alleged “error” in 1973, instead waited almost 
twenty- nine 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.  .   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.  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. 

5.  Recommendation: The Coast Guard therefore recommends that the Board deny the relief 
requested. 

GENELLE T. VACHON 
  By direction 

 

 

(1) CGPC ltr 5420 dated 16 May 2002 
(2) Applicant's Service Record 

 

 
 
 
 
 
Encl: 

 

States 

 
 
Commander 
United 
Personnel Command 
 
 

 

                                      5420 

  

Coast 

Guard 

2100  Second  Street,  S.W. 
Washington,  DC  20593-0001 
Symbol:  CGPC-adm-2 
Staff 
Phone: 
267-6969 
FAX: (202) 267-4381 

(202) 

 

Commandant (G-LMJ) 

(a) CGBCMR Application 2002-036 

 
 
From:  Commander, Coast Guard Personnel Command 
To: 
 
Subj:  PROGRAM INPUT ON CGBCMR APPLICATION (XXXXXX) 
 
Ref: 
 
1.  Comments on the application contained in reference (a) are attached as enclosure (1). 
 
2.   I recommend relief be granted. 
 
 
 
 
                                                                        Acting 
                                                                         
 
Encl:  (1) Comments concerning CGBCMR Application 2002-032 

D. A. DiIULIO 

 

Enclosure 1 - CGBCMR 2002-056 

 
RELIEF REQUESTED BY APPLICANT: 
 
1.  The applicant requests that his “AWOL” (Absent Without Leave) status at the time 
of an automobile accident be removed from his record so he may receive Veterans 
Administration Benefits.  

 
APPLICANT’S STATED BASIS FOR RELIEF: 
 
1.  The applicant states his “AWOL” status was dismissed by the Coast Guard. 
 
MATTERS OF RECORD: 
 
1.  The application is not timely. 
 
2.  November  29,  1971:  Per  Form  CG-3301  (Enlistment  Contract  –  U.S.  Coast  Guard) 

applicant enlisted in the Coast Guard for a period of 4 years. 

 
3.  February 20, 1972: Per Form CGHQ-3299 (Service Record Card), applicant reported 

for duty to the U.S. Coast Guard Cutter Burton Island in Long Beach, CA.  

 
4.  November 2, 1972: Per Form CG-3312 (Personnel Action Sheet), applicant, “Failed to 

return from authorized liberty at 0645 this date.  Intentions Unknown.” 

 
5.  November  13,  1972:  Per  Form  DD  553  (Absentee  Wanted  by  the  Armed  Forces), 
notice was distributed to various Coast Guard units and applicant’s family members 
alerting them of applicant’s absentee status. 

 
6.  December 1, 1972: Per Form CG-3312, applicant was “Declared a deserter from the 
U.S.  Coast  Guard  from  0645,  2  November  1972  having  been  UA  (Unauthorized 
Absence) from the USCGC Burton Island, Long Beach, CA since that time.” 

 
7.  December 23, 1972: Per Form CG-3312, applicant was “involved in auto accident and 
admitted  to  Bernalillo  County  Medical  Center  for  fractured  skull.    Released  from 
hospital on 29 December 1972.” 

 
8.  January  8,  1973:  Per  Form  CG-3312,  applicant  “surrendered  to  USCG  Recruiting 
Office,  Albuquerque,  New  Mexico  at  1400,  8  January  1973  having  been  AWOL 
seventy one days.”   

 
9.  January  9,  1973:  Per  Form  CG-3312,  applicant  “reported  on  USCG  Base  Terminal 

Island at 1610, January 9, 1973.” 

 

 

 
10. January  10,  1973:  Per  Form  CG-3312,  applicant  was  “admitted  as  Inpatient  at  U.S. 

Naval Hospital, Long Beach, CA.” 

 
11. January 10, 1973: Per Form CG-3312, “Coast Guard District Eleven convened a Board 

of Investigation into the accident of” the applicant. 

 
12. February  2,  1973:  Per  letter  5830  from  CWO2  xxxxxxxx  (investigating  officer  for 
applicant’s board of investigation) to Commandant via Commander, Eleventh Coast 
Guard  District,  Subj:  Informal  Board  of  Investigation;  completion  of,  the 
recommendations  were  that  applicant  should  be  “charged  with  misconduct,”  that 
the applicant be required to pay his own hospital expenses as a result of his accident 
and  “That  should  any  disability  claim  arise  as  a  result  of  XXXXXX’s  (applicant) 
accident it should be denied.” 

 
13. February 8, 1973: Per Form NAVMED 6100/1 (Medical Board Report Cover Sheet), a 
medical board was convened to determine applicant’s fitness for duty.  The board’s 
opinion in paragraph seven read “the patient (applicant) is unfit for duty by virtue 
of the defect he has in his skull.  This would predispose him to serious brain trauma 
should  he  sustain  even  a  gentle  bump  on  that  portion  of  his  head.”    The  board 
diagnosed  the  applicant  with  “Skull  Defect,  Postoperative,  #7381  secondary  to 
Depressed Skull Fracture, #8030 is correct.”  The board recommended that applicant 
be referred to a Physical Evaluation Board for final adjudication.   It was noted on 
this form that disciplinary action was pending.   

 
14. February 8, 1973: Per Form NAVMED 6100/2 (Medical Board Statement of Patient), 
applicant endorsed a form which informed him of the medical board’s findings that 
he was unfit for duty and that he appear before a physical evaluation board. 

 
15. February 12, 1973: Per Form CG-3312, applicant was “released from inpatient at U.S. 

Naval Hospital, Long Beach, CA.” 

 
16. February 14, 1973: Per letter 5830 from Commander, Eleventh Coast Guard District 
to  CWO2  xxxxxxx,  (First  endorsement on  CWO2  xxxxxxx’s  ltr  5830  of  2  Feb  73)  it 
was  requested  that  CWO2  xxxxxx  reinterview  member’s  in  his  informal  board  of 
investigation  to  allow  applicant’s  counsel  “full  opportunity  to  effectively  take 
advantage of the rights of a party.”  CWO2 xxxxxx was also requested to “include a 
specific opinion as to whether or not the injuries were incurred in the line of duty.” 

 
17. February 15, 1973: Per CG-3307 (Administrative Remarks) applicant “Departed for 

30 days sick leave this date.” 

 
18. February 23, 1973: Per letter 5830 from CWO2 Xxxxxx to Commandant, via Eleventh, 

 

 

Coast Guard District, (Second endorsement) CWO2 Xxxxxx advised that counsel for 
applicant was present when CWO2 reinterviewed member’s in his informal board of 
investigation and that applicant’s counsel “did take advantage of counsel’s right to 
cross examine.”  CWO2 Xxxxxx advised “It is the board’s opinion that the accident 
was a result of misconduct and was caused by the member’s intoxicated state at the 
time of the accident and the injuries sustained as a result of that accident were not 
incurred in the line of duty.” 

 
19. February 26, 1973: Per letter 5830 from applicant’s counsel to CWO2 Xxxxxx, Subj: 
Rebuttal of Findings of Board of Investigation, it was “requested that the finding of 
misconduct in the second endorsement to the investigation be disapproved.” 

 
20. Per  undated  letter  5830  from  Commander,  Eleventh  Coast  Guard  District  to 
Commandant,  (Third  endorsement  on  CWO2  Xxxxxx’s  ltr  5830  of  2  Feb  73),  the 
Eleventh Coast Guard District notified Commandant “The proceedings of the board 
are approved, subject to the following comments.”  The comments contained in the 
letter  concerned  the  applicant’s  counsel’s  complaint  about  cross-examination  of 
witnesses (which was corrected per CWO2 Xxxxxx’s letter of February 23, 1973) and 
the  board’s  finding  of  misconduct.    Commander,  Eleventh  Coast  Guard  District 
agreed  with  CWO2  Xxxxxx’s  opinion  that  the  applicant’s  actions  did  require  a 
misconduct determination. 

 
21. March 14, 1973: Per letter 6100 from Commander, Eleventh Coast Guard District to 
Commandant,  Subj:  SA  Xxxxx  x.  Xxxxxx  xxxxxxxxxxxxxxx  USCG,  Medical  Board 
findings; forwarding of, the findings of the applicant’s medical board and informal 
board  of  investigation  were  forwarded  to  Commandant  concurring  with  the 
findings  of  both  boards.    A  request  was  made  to  place  the  applicant  in  “home 
awaiting orders status pending action of the Central Physical Evaluation Board.” 

 
22. March 16, 1973: Per CG-3307, applicant “Returned from 30 days sick leave this date.” 
 
23. Per undated form entitled “Appointment of Counsel for CPEB Evaluee”, LT xxxxxxx 
xxxxxx  was  appointed  counsel  for  the  applicant’s  CPEB  scheduled  for  March  27, 
1973. 

 
24. March  27,  1973:  Per  CGHQ-4808  (Coast  Guard  Central  Physical  Evaluation  Board 
Findings and Recommended Disposition) a Central Physical Evaluation Board was 
convened declaring: “It is the opinion and decision of the members that the injuries 
sustained  by  the  evaluee  were  not  incurred  in  line  of  duty  as  defined  by  the 
provisions of Article 17-A-19 of CG-207.  It is further the opinion and decision of the 
members  that  the  evaluee’s  injuries  were  sustained  as  the  foreseeable,  direct  and 
proximate result of the evaluee’s actions, which were taken in reckless disregard of 
the safety of the evaluee and others exposed to him and was of such a degree as to 

 

 

constitute gross negligence and ‘intentional misconduct’ as defined in Article 17-A-
14 of CG-207.  The members further find that the evaluee’s injuries were not directly 
caused by any intervening event but rather were proximately and directly caused by 
the  gross  negligence  and  intentional  misconduct  of  the  evaluee.”    The  CPEB 
diagnosed the evaluee with “Skull, Loss of part of, Bother Inner and Outer Tables – 
Without  Brain  Hernia  –  Area  Intermediate  2  cm.  x  4.7  cms.”    The  boards 
recommended disposition was for applicant to be separated without severance pay. 

 
25. Per Article 17-A-19 of CG-207 (Coast Guard Personnel Manual-PERSMAN) of 1981 
(the  most  closely  dated  and  available  PERSMAN  to  the time  of  applicant’s  board) 
the  term  “line  of  duty”  does  not  apply  when  an  injury  “is  found  to  have  been 
incurred  under  the  following  circumstances:  (1)  As  the  result  of  the  person’s 
misconduct. (2) While avoiding duty by deserting the service. (3) During a period of 
unauthorized absence.” 

 
26. Per Article 17-A-14.(b)(2) of CG-207, “In order to support an opinion of misconduct, 
it must be found that the injury or disease (a) was intentionally incurred, or resulted 
from  such  gross  negligence  as  to  demonstrate  a  reckless  disregard  of  the 
consequences, and (b) was either immediately caused by the act under consideration 
or  set  other  events  in  motion,  all  constituting  a  natural  and  continuous  chain  of 
events, which caused the injury or disease, and (c) was reasonably foreseeable or the 
likely result of such act.”  

 
27. Article  17-A-14(a)  states  “Intentional  misconduct  and  willful  neglect  are  terms 

descriptive of misconduct.  Misconduct is wrongful conduct.” 

 
28. Article 17-A-14 (b) states “Physical evaluation boards shall apply the following rules 
in  making  recommended  findings  concerning  misconduct:”  Article  17-A-14(b)(1): 
…there must be clear and convincing evidence that the injury or disease was either 
the  proximate  result  of  the  person’s  misconduct.  Or  that  it  was  incurred  in  the 
circumstances noted in subparagraph (6) hereof.”  Article 17-A-14 subparagraph (6) 
states  “A  finding  of  misconduct  will  normally  be  required  independently  of  the 
above rules when injury occurs while the person is engaged in the commission of an 
act which is wrong in itself.” 

 
29. March  29,  1973:  Per  reverse  of  Form  CG-4809  (Statement  by  Counsel)  applicant 
endorsed  a  statement  which  read  “I  accept  the  Central  Physical  Evaluation  Board 
findings  and  recommended  disposition  and  waive  my  right  to  a  formal  hearing 
before  a  physical  evaluation  board.”    This  form  also  documents  that  applicant’s 
counsel  “consulted  with  the  evaluee  on  29  Mar  73,  and  counseled  him  regarding 
acceptance or rejection of the CPEB’s findings and recommended disposition.” 

 
30. March 30, 1973: Per letter 1326 from Commander, Eleventh Coast Guard District to 

 

 

applicant,  Subj:  Home  Awaiting  Orders  Status,  applicant  was  “placed  in  Home 
Awaiting  Orders  status  pending  the  outcome  of  your  Central  Physical  Evaluation 
Board.” 

 
31. Per  Article  17-D-13.c(4)  of  the  PERSMAN  “Awaiting  orders  Status”  Article  17-D-
13.c(6)  states  “Prior  to  the  departure  of  the  evaluee  from  the  vicinity  of  his  duty 
station,  those  parts  of  the  separation  processing  requiring  the  presence  of  the 
evaluee will be completed so that, if separation or retirement is directed, such action 
can be implemented by mail.” 

 
32. April  17,  1973:  Per  letter  5830  entitled  “INVESTIGATION  INTO  THE  ACCIDENT 
AND  INJURIES  TO  SA  XXXXX  X.  XXXXXX  (xxxxxx),  USCG  ON  24  DECEMBER 
1972  -  ACTION  BY  FINAL  REVIEWING  AUTHORITY”  the  final  reviewing 
authority,  ADMIRAL  W.L.  Morrison  (Chief  Counsel,  U.S.  Coast  Guard)  declared 
“Absent clear and convincing evidence of grossly negligent behavior, we feel that all 
doubts  in  this  matter  must  be  resolved  in  XXXXXX’s  favor  and  that  a  misconduct 
finding is not appropriate under these circumstances.”  Admiral Morrison continued 
“However, when his injury was incurred, XXXXXX was in an AWOL status, having 
been absent from his duty station without authorization since 29 October 1972.  As 
outlined in Section 0406e. of the CG Supp. MCM, a finding of ‘not in line of duty’ 
will  be  made  when  an  injury  is  incurred  by  a  member  during  a  period  of 
unauthorized  absence  which  materially  interferes  with  the  performance  of  his 
military duties.”  ADMIRAL Morrison’s final conclusion read “Hence, from the facts 
as  reported,  we  find  that  SA  XXXXX  X.  XXXXXX  (xxxxxxxx),  USCG,  sustained 
injuries on 24 December 1972; that his injuries were not incurred in the line of duty 
and were not due to his own misconduct.” 

 
33. April  25,  1973:  Per  Commandant  (G-LGL)  note  1850  concerning  applicant,  “the 
investigation  into  the  accident,  which  caused  the  injuries  resulting  in  the  present 
retirement proceeding, concluded that evaluee’s injuries were not incurred in line of 
duty  and  were  not  due  to  his  misconduct.    The  Chief  Counsel’s  office,  therefore, 
does not concur with the CPEB on its finding of “misconduct.”  Nevertheless, since 
the evaluee’s disability was clearly not incurred in line of duty, as found by both the 
CPEB and the Final Reviewing Authority, XXXXXX is not entitled to retirement or 
separation  with  severance  pay.    Accordingly,  no  objection  is  interposed  to  the 
CPEB’s recommended final action of separation without severance pay.” 

 
34. April 27, 1973: Per Reverse of Form CGHQ-4808 (Action of the Chief Counsel) the 
Chief,  Office  of  Personnel  approved  the  final  action  of  the  Central  Physical 
Evaluation Board and stated “Pursuant to 49 C.F.R. 1.45(b) and 1.46(b), it is directed 
that SA Xxxxx x. Xxxxxx  xxxxxxxxxxxxxx, USCG, be separated from the U.S. Coast 
Guard  without  entitlement  to  any  of  the  benefits  under  Chapter  61,  Title  10,  U.S. 
Code, in accordance with section 1207 of that title.” 

 

 

 
35. The 1973 49 C.F.R. 1.45(b) permitted the Coast Guard Commandant to “Exercise the 
authority of the Secretary over and with respect to any personnel” and redelegate(d) 
and authorize(d) successive redelegations of that authority within the organization 
under  his  jurisdiction.”    The  1973  C.F.R.  1.46(b)  permitted  the  Coast  Guard 
Commandant to “Carry out all the activities of the Coast Guard, including, but not 
limited  to,  law  enforcement,  safety  of  life  and  property  at  sea,  aids  to  navigation, 
search  and  rescue  ice  breaking,  oceanographic  research  and  military  readiness 
functions.”  

 
36. May 1, 1973: Per message date time group 012033Z May 73 from Commandant to 
Coast Guard Base, Terminal Island, CA, applicant was to be “separated from USCG 
without  entitlement  to  any  of  the  benefits  under  Chapter  61  Title  10  U.S.  Code...”  
The message continued by stating the “cause of discharge will be shown as physical 
disability due to own misconduct.” 

 
37. May  17,  1973:  Per  CG-3312  applicant’s  Commanding  Officer  held  “Commanding 
Officer’s  Nonjudicial  Punishment”  for  applicant’s  unauthorized  status  from  2 
November 1972 until 8 January 1973.  The notes within this form declare: “The mark 
of  desertion  under  date  of  1  December  1972  for  the  absence  commencing  2 
November  1972  is  hereby  removed  as  erroneous  by  reason  of  conviction  of 
unauthorized absence.”  Applicant’s sentence was “a letter of reprimand.” 

 
38. May  30,  1973:  Per  CG-3307,  applicant  was  “Discharged  this  date  by  reason  of 

physical disability due to own misconduct.” 

 
39. May 30, 1973: Per Form CG-3309 (Record of Discharge, Release from Active Duty, or 
Death), the reason for applicant’s discharge was listed as “Physical disability due to 
own misconduct. 

 
40. May  30,  1973:  Per  DD  Form  214N  (Armed  Forces  of  the  United  States  Report  of 
Transfer or Discharge) applicant received an Honorable discharge.  The authority of 
applicant’s  discharge  was 
listed  as  “Article  12-B-9,  CG  PERSMAN”  and 
Commandant message 012033Z May 73. 

 
41. Per PERSMAN 12-B-9(c) “The Commandant may direct or authorize the discharge 
of an enlisted person for physical disability that was not incurred in or aggravated 
by a period of active military service under the following conditions: (1) A medical 
board has expressed the opinion: a. That the individual does not meet the minimum 
standards  for  retention  on  active  duty.  b.  That  he  is  unfit  for  further  Coast  Guard 
service  by  reason  of  physical  disability,  and  c.  That  the  physical  disability  was 
neither  incurred  in  nor  aggravated  by  a  period  of  active  military  service.  (2)  The 
individual’s commanding officer and/or district commander concur in the opinion 

 

 

of the board. (3) The individual has been fully informed of his right to a full and fair 
hearing and has stated in writing that he does not demand such a hearing.”  

 
42. May  30,  1973:  Per  letter  1910  from  Commander,  Eleventh  Coast  Guard  District  to 
applicant,  Subj:  Discharge;  processing  for,  applicant  was  advised  his  records  were 
being  processed  for  discharge  and  requested  applicant  send  his  Armed  Forces 
Identification Card so his record and pay account could be closed out. 

 
43. Other  than  the  May  30,  1973  letter  to  applicant,  there  is  no  record  in  applicant’s 
entire service record which would substantiate that applicant was notified in writing 
of the proposed action and the reasons and the possible effect of the discharge. 

 
44. March  10,  1999:  Per  a  statement  from  the  Department  of  Veterans  Affairs 
Albuquerque  Regional  Office  submitted  by  the  applicant  with  his  BCMR 
application,  “service  connection  may  be  granted  for  disability  incurred  or 
aggravated  in  the  line  of  duty  in  the  active  military,  naval  or  air  service.    Line  of 
duty is defined by the law as an injury or disease incurred or aggravated during a 
period of active military, naval or air service unless such injury or disease was the 
result of the veteran’s own willful misconduct.  A service department finding that 
injury  or  disease  occurred  in  the  line  of  duty  is  binding  on  the  Department  of 
Veterans Affairs (VA) unless it is patently inconsistent with the requirements of laws 
administered by the VA.  Requirements as to line of duty are not met if at the time 
the injury was suffered or disease contracted the veteran was: (1) Avoiding duty by 
desertion  or  was  absent  without  leave  which  materially  interfered  with  the 
performance of military duty…”   

 
CONCLUSIONS: 
 
1.  Applicant has submitted his BCMR application for the purpose of obtaining an “in 

line of duty” finding for the injuries he sustained while in an AWOL status.   

 
2.  The May 17, 1973 “Commanding Officer’s Nonjudicial Punishment” found applicant 

guilty of unauthorized absence. 

 
3.  Both the CPEB and Final Reviewing Authority investigations into the circumstances 
of applicant’s injuries found that they were clearly not incurred in line of duty due 
to  his  AWOL  status  at  the  time  of  the  accident.    Applicant’s  AWOL  status  was 
carefully investigated and confirmed during both of these processes. 

 
4.  Applicant  offers  no  evidence  to  contradict  the  findings  and  decisions  made 
concerning  his  AWOL  status  and  the  “not  in  line  of  duty”  determination  for  his 
injuries.  The record indicates he was given full due process throughout each of the 
proceedings conducted in this matter. 

 

 

 
RECOMMENDATION: 
 
1.  I recommend no relief be granted.