DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2000-003 
 
 
   

 
 
The applicant, a former seaman apprentice (SA; pay grade E-2), asked the Board 
to correct his military record by changing his reenlistment code from RE-4 (ineligible for 
reenlistment) to RE-1 (eligible for reenlistment) or RE-3 (eligible for reenlistment except 
for disqualifying factor). 
 

ALLEGATIONS OF THE APPLICANT 

 
 
The  applicant  alleged  that  he  was  wrongly  discharged  and  assigned  an  RE-4 
reenlistment code because the Coast Guard decided that his enlistment was fraudulent.  
He alleged that he never intended to lie on his enlistment forms and that the erroneous 
information on them was the result of his own and his recruiter’s misunderstanding of 
or  lack  of  attention  to  the  forms.    He  also  alleged  that  his  discharge  was  approved 
before his statement in appeal was ever received by the Commandant’s office. 
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
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 filed on Octo-
ber 5, 1999, and completed on December 15, 1999, upon receipt of the applicant’s mili-
tary records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  September  7,  2000,  is  signed  by  the  three  duly 

RELIEF REQUESTED 

 

 
 

 

 
On September 20, 1995, prior to his enlistment, the applicant signed a Report of 
Medical History.  The report shows that he broke his fifth metacarpal nine years previ-
ously at age 17 and that he wore glasses for nearsightedness.  The applicant answered 
“no” to the questions “Have you ever been a patient in any type of hospital?”; “Have 
you  ever  had  any  illness  or  injury  other  than  those  already  noted?”;  and  “Have  you 
ever received, is there pending, or have you applied for pension or compensation for 
existing disability?”  He also denied ever having any back trouble or impairment of his 
limbs.  He was examined and found fit for enlistment. 
 
 
On xxxxxxxxx, the applicant enlisted in the Coast Guard for a term of four years.  
On that day, he signed a DD Form 1966/2.  In block 24.a. of the form, he indicated that 
he had dependents (his wife and one child).  In block 24.b., he checked “no” in answer 
to the question “Are you now or have you ever been divorced or legally separated?”  
The DD Form 1966/2 also indicates that the applicant was a naturalized citizen and that 
his recruiter had seen his “naturalization certificate.” 
 

On the same day, the applicant also signed a DD Form 398-2, which requires the 
applicant  to  “list  ALL  arrest  information  regardless  of  whether  you  have  previously 
listed or disclosed this information or whether the record in your case has been ‘sealed,’ 
expunged, or otherwise stricken from the court record.”  It further asks, “Have you ever 
been arrested, charged, cited, held, or detained by Federal, State, or other law enforce-
ment or juvenile authorities regardless of whether the charge was dropped or dismissed 
or you were found not guilty?”  The form shows that he revealed a May 1991 arrest for 
“driving  under  the  influence”  and  driving  without  a  license  and  a  September  1991 
arrest for contempt of court.  Under “Remarks,” the form states,  “D.U.I. in May 1991.  
Clean  record  since.”    The  applicant  also  signed  a  CG-3307  form  with  the  following 
statement: 
 

I hereby certify that all information on my enlistment documents is current and accurate.  
I have not had any involvement with the police or had any changes in dependency unless 
noted on those documents.  I understand withholding information is punishable under 
the Uniform Code of Military Justice and may result in less than honorable discharge for 
fraudulent enlistment. 

 
On September 27, 1996, the applicant’s command made two negative administra-
 
tive entries in his record.  The first documented unauthorized phone calls, which, upon 
inquiry, the applicant alleged were made for official business but which investigation 
revealed to be of a personal nature.  The second stated that he had been assigned a mark 
of 2 (on a scale of 1 to 7) for integrity and that his eligibility for a good conduct award 
was terminated.   
 
 
On October 23, 1996, the Commander of the xxxxxxxx Coast Guard District noti-
fied the applicant that he was being recommended for an honorable discharge due to 

his “procurement of a fraudulent enlistment through omission or concealment of delib-
erate material which if known at the time would have resulted in rejection.”   
 

On October 31, 1996, the applicant signed the District Commander’s notice, indi-
cating that he objected to the recommended discharge and had attached a statement in 
his own behalf to the recommendation.  In his statement, the applicant asked to remain 
on active duty.  He stated that he had joined the Coast Guard upon the recommenda-
tion of the District Court Judge of the State of xxxxx.  He stated that he had told his 
recruiter about his record of driving “under the influence,” driving without a license, 
and contempt of court for missing a court date, but he did not mention his arrests for 
theft and trespass because his attorney had told him they “were to be expunged.”  He 
stated that he never intended to defraud the government about his “legal past.”  The 
applicant attached to his statement a copy of his “conviction-only” criminal record in 
xxxxxxx, which shows the following: 

 

•  On May 17, 1991, he was arrested for driving under the influence of an intoxicat-
ing substance and for driving without a license, both misdemeanors in xxxxx.  He 
was found guilty and fined $225 and his license was suspended for 90 days. 
•  On  January  20,  1992,  he  was  arrested  for  criminal  contempt  of  court,  a  misde-
meanor.  He was found guilty and fined $25. 
•  On July 11, 1993, he was again arrested for criminal contempt of court, for which 
he was fined another $25. 
•  On October 21, 1993, he was arrested a third time for criminal contempt of court, 
for which he was fined $50. 

 
In his statement, the applicant also wrote that he had no intention of misleading 
the government about his previous divorce.  He stated that his recruiter only asked him 
if he had any dependents from a previous marriage and he because there were none, he 
said  “no.”    He  indicated  that  he  had  assumed  the  recruiter  knew  he  was  divorced 
because  of  the  question  and  because  the  recruiter  saw  his  Certificate  of  Citizenship, 
which shows his divorce. 
 
 
In his statement, the applicant also wrote that he had not intended to defraud the 
government  by  failing  to  mention  a  previous  back  injury.    He  stated  that  he  did  not 
mention  it  when  he  enlisted  because  he  had  “no  recurring  problems”  and  his  doctor 
told him he was fit for military duty.  He stated that his doctor’s letter to the recruiter 
and three physical examinations he had undergone since enlisting also proved he was 
fit for duty. 
 
 
Finally, the applicant wrote that “[d]uring the enlistment process, [he], to the best 
of  [his]  knowledge,  answered  all  questions  truthfully  and  willingly  with  no  intent  to 
lie.”  He asked that, if he had to be discharged, he be assigned an RE-1 or RE-3E (errone-
ous enlistment) reenlistment code.  

 

The  applicant  attached  to  his  statement  appealing  his  recommended  discharge 
an affidavit from the Officer in Charge (OIC) of the recruiting office where he enlisted.  
The OIC stated that the applicant had disclosed during his initial interview his arrest for 
driving under the influence and, perhaps, his arrest for trespassing.  The OIC stated that 
the  offenses  did  not  disqualify  the  applicant  from  enlisting  under  COMDTINST 
M1100.2C.  He did not indicate why the trespassing charge, if disclosed, was omitted 
from the applicant’s DD Form 398-2, while the other offense was listed.  The OIC stated 
that the recruiters did not remember discussing the applicant’s divorce in the interview 
and that no one noticed the word “divorced” on his naturalization certificate because 
the certificate is not reviewed for that information.  However, he stated, the applicant 
“had  nothing  to  gain  by  withholding  this  information”  and  the  divorce  “could  have 
been easily overlooked by him or the recruiter.”  He further stated that the applicant 
did  not  disclose  a  previous  back  injury  and  that,  if  he  had,  “he  would  have  been 
required to provide medical documents for the MEPS Doctor to review.”  The OIC also 
stated the following in support of the applicant: 

 
The week prior to shipping off to basic training, the applicant is required to come in to 
read and sign all of the documents pertaining to his enlistment, most forms are required 
to be done in triplicate with original signatures.  This process can take up to an hour and 
a half.  It is not uncommon for the applicant to become overwhelmed with what they are 
reading and signing.  The possibility of a person misreading or leaving out an important 
item  is  very  probable.    Most  often  important  issues  have  been  dealt  with  during  the 
enlistment process. 
 
[The  applicant]  had  nothing  to  gain  by  withholding  information  on  the  above  issues.  
None of them would have prevented his enlistment into the Coast Guard.  The DUI was 
within the required timeframe.  Being divorced is not disqualifying.  The back problem 
would have probably required a consult which would more than likely have been favor-
able  since  he  has  already  passed  three  medical  exams.    The  trespassing  was  a  minor 
offense that was dismissed and not of a continuing nature, so it required no action. 

 
On November 8, 1996, the District Commander asked the Coast Guard Personnel 
 
Command (CGPC) to discharge the applicant for misconduct due to his “procurement 
of a fraudulent enlistment through deliberate omission or concealment of facts which, if 
known at the time, would have resulted in rejection of his application.”  He stated that 
an investigation had revealed that the applicant had failed to disclose a May 1992 arrest 
for vehicle larceny, for which he was fined $500 and placed on probation for one year; 
and an August 1992 arrest for trespassing, for which he as fined $50.  The investigation 
also revealed that the applicant had failed to disclose a previous divorce and work inju-
ries to his back, neck, and legs in June 1993.  The injuries were found to be 17 percent 
disabling, and he received almost $40,000 in settlement.  He also stated that the appli-
cant  had  placed  two  personal,  unauthorized  calls  on  a  government  phone  and,  upon 
inquiry, stated that they were placed for official business.   
 

The District Commander attached to his request a copy of the applicant’s state-
ment dated October 31, 1996, his arrest reports, other documents substantiating allega-
tions in the request, and statements by the applicant indicating that he did not include 
the omitted information because he was in a hurry and he did not believe it was neces-
sary.    The  District  Commander  also  attached  a  new  statement  from  the  OIC  at  the 
recruiting office.  The OIC stated that he had written his first statement based on what 
the  applicant  had  revealed  to  him  in  a  telephone  conversation  on  October  30,  1996.  
However,  when  contacted  by  the  applicant’s  command  on  November  4,  1996,  he 
learned the “more alarming details” of the applicant’s criminal and medical histories, 
which the applicant had failed to mention.  The OIC stated that the history of arrests 
and disabling nature of the applicant’s injuries would have made his enlistment papers 
subject to further review and would likely have precluded his enlistment. 

 
The District Commander’s request also included a copy of a January 1995 settle-
ment agreement between the applicant and his employer for disability compensation.  
The  agreement  states  that  he  sustained  injuries  to  his  neck,  back,  and  both  legs  on 
xxxxx,  1993.    It  also  states  that  a  chiropractor  had  found  him  9  percent  permanently 
disabled  by  his  “back  complaints”  and  4.5  percent  impaired  by  his  “cervical 
complaints.”  Under the agreement, his employer paid over $30,500 for his medical bills 
and  some  $40,000  in  disability  payments,  “representing  seventeen  percent  (17%) 
disability of the whole person … .” 
 
 
On November 15, 1996, CGPC issued orders for the applicant to be discharged 
no later than xxxxxx, 1996 by reason of misconduct due to fraudulent enlistment with a 
JDA separation code. 
 
 
On xxxxxxx, 1996, the applicant was honorably discharged.  His separation code 
was  JDA,  the  narrative  reason  for  separation  was  “fraudulent  entry  into  military 
service,” and his reenlistment code was RE-4. 
 

SUMMARY OF EVIDENCE SUBMITTED BY THE APPLICANT 

 
 
The applicant submitted copies of all the documents summarized above.  He also 
submitted a letter dated February 20, 1997, from the Attorney General of the State of 
xxxxxxx  certifying  that  his  arrest  for  criminal  trespass  on  January  20,  1992,  had  been 
expunged.    The  letter  states  that,  “[u]nder  the  provisions  of  Section  831-3.2,  xxxxx 
Revised Statutes, this certificate authorizes you to state in response to any question or 
inquiry,  whether  or  not  under  oath,  that  you  have  no  record  regarding  the  specific 
arrest listed above.”  The letter does indicate the exact date of the expungement.   
 

The  applicant  also  submitted  a  copy  of  a  xxxxxx  statute,  which  states  that 
“[u]pon the issuance of the expungement certificate, the person applying for the order 
shall be treated as not having been arrested in all respects not otherwise provided for in 

this section.” Xxxxxx Revised Statutes § 831-3.2.(b)  However, the statute also indicates 
that records of an expunged arrest will be divulged upon inquiry by “[a]n agency of the 
federal government which is considering the subject person for a position immediately 
and directly affecting the national security.” XRS § 831-3.2.(d). 
 
 
The applicant submitted a copy of a judgment of the United States District Court 
for the District of xxxxx indicating that he had been arrested for vehicle theft on May 23, 
1992, and pled guilty to “theft of personal property” on October 27, 1993.  He was fined 
$500 and place on probation for one year. 
 
 
The applicant submitted a copy of a decree by the United States District Court for 
the District of xxxxxx dated November 7, 1995.  It states that he had “complied with the 
condition of probation imposed by the order of the Court” and that, therefore, he was 
discharged from probation and the proceedings were terminated. 
 
 
The applicant also submitted a copy of a divorce decree dated February 4, 1994.  
The decree indicates that there were no children of that marriage.  In addition, he sub-
mitted a copy of his Certificate of Citizenship, dated May 22, 1995, which indicates that 
his marital status was “divorced.”  
 

On June 19, 2000, the Chief Counsel of the Coast Guard submitted an advisory 

 
opinion recommending that the Board deny relief for lack of merit.  
 
 
The  Chief  Counsel  alleged  that  the  applicant  was  not  denied  any  due  process 
rights during his prior to his discharge.  He stated that, with less than eight years of 
active service, the applicant was only entitled to notice of the reason for his pending dis-
charge and an opportunity to submit a statement in his own behalf.  He alleged that the 
applicant  received  proper  notice  and  availed  himself  of  the  opportunity  to  submit  a 
statement in his own behalf.  The Chief Counsel stated that the applicant was not enti-
tled to counsel because his discharge was “honorable.”  He said the applicant’s com-
plaint that his discharge happened too quickly is “unfounded” because he had no right 
to a probationary period and he has not provided any evidence to “overcome the strong 
presumption that Coast Guard officials carried out their duties correctly, lawfully, and 
in good faith in discharging their responsibilities in this case.”  Arens v. United States, 
969 F.2d 1034, 1037 (1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). 
 
 
The Chief Counsel alleged that the wording on the enlistment forms the appli-
cant  signed  clearly  required  him  to  disclose  the  omitted  information  concerning  his 
arrests and injuries.  The wording on DD Form 398-2 regarding arrests, he argued, “is 
unambiguous and brooks no other interpretation or explanation” but that the omitted 

VIEWS OF THE COAST GUARD 

 

information  should  have  been  disclosed.    Moreover,  he  argued,  on  the  CG-3307  the 
applicant signed, he denied any arrests other than those shown on the DD Form 398-2. 
 
The  Chief  Counsel  also  pointed  out  that  the  certificate  of  expungement 
 
submitted  by  the  applicant  does  not  prove  that  his  conviction  for  trespass  was 
expunged  prior  to  his  discharge.    Moreover,  he  submitted  nothing  to  prove  that  his 
conviction for larceny had been expunged. 
 
 
The Chief Counsel alleged that there is no evidence the Coast Guard treated the 
applicant unjustly.  He alleged that, “once it was determined Applicant committed mis-
conduct by procuring a fraudulent enlistment, he could only be assigned a JDA separa-
tion code and a RE-4 reenlistment code.  Therefore, there was no error or abuse of dis-
cretion  in  the  assignment  of  his  separation  and  reenlistment  codes.”    He  also  argued 
that an RE-1 or RE-3 would not help the applicant because he would have to disclose 
the information he hid from the Coast Guard to any other military service to which he 
applied, and “[s]uch information would prohibit his enlistment.” 
 
 
Finally,  the  Chief  Counsel  stated  that  the  case  involves  a  significant  issue  of 
Coast  Guard  policy.    Therefore,  any  grant  of  relief  by  the  Board  would  be  subject  to 
final action by the delegate of the Secretary, under 33 C.F.R. § 52.64(b). 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On June 20, 2000, the BCMR sent a copy of the Chief Counsel’s advisory opinion 
 
to  the  applicant  with  an  invitation  to  respond  within  fifteen  days.    The  applicant 
requested an extension  and responded on July 27, 2000. 
 
 
The applicant stated that he did not agree with the Chief Counsel’s recommenda-
tion.  He said that all of the enlistment papers he signed were typed by the recruiter 
after his interview and before the day he went to the recruiting office to sign them.  On 
that  day,  he  said,  the  recruiter  “vaguely  explained”  the  documents  before  he  signed 
them.  Moreover, he stated, to the best of his recollection, he did discuss his arrests and 
divorce with the recruiter during the interview. 
 
 
ing or captain’s mast, but his request was denied. 

The applicant further stated that prior to his discharge, he had requested a hear-

APPLICABLE REGULATIONS 

 

 

 
Article 12.B.18.b.(2) of the Personnel Manual authorizes the Commander of the 
Military  Personnel  Command  to  discharge  an  enlisted  member  for  misconduct  upon 
discovery that the member “[p]rocure[d] a fraudulent enlistment, induction, or period 

of  active  service  through  any  deliberate  material  misrepresentation,  omission  or  con-
cealment which if known at the time might have resulted in rejection.” 
 
Article 12.B.18.e. states that members whose commands recommend that they be 
 
discharged for misconduct are entitled to be notified and to submit a statement on their 
own behalf.  They are only entitled to counsel if their commands seek a general, rather 
than honorable, discharge. 
 
 
Article 12.B.5. states that members being discharged who are not recommended 
for  reenlistment  have  a  right  to  a  hearing  before  an  Administrative  Discharge  Board 
(ADB)  only  if  they  have  eight  or  more years  of  “total  active  and/or Reserve  military 
service.”  Members with less than eight years of service have the right to submit a state-
ment appealing their commanding officer’s decision. 
 
 
The Separation Program Designator (SPD) Handbook states that members with 
no  entitlement  to  an  ADB  who  are  involuntarily  discharged  because  they  have  “pro-
cured a fraudulent enlistment, induction, or period of military service through deliber-
ate material misrepresentation, omission or concealment” shall be assigned a JDA sepa-
ration code, an RE-4 reenlistment code, and “fraudulent entry into military service” as 
the narrative reason for separation shown on their discharge forms.   
 

The SPD Handbook also states that members may be assigned either an RE-4 or 
an RE-3E reenlistment code if they are involuntarily discharged (with no entitlement to 
an  ADB)  because  they  “erroneously  enlisted,  reenlisted,  extended  or  [were]  inducted 
into  a  Service  component.”  Such  members  are  assigned  a  JFC  separation  code  and 
“erroneous entry (other)” as a narrative reason for separation. 

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 section 1552 

of title 10, United States Code.  The application was timely. 

The evidence in the record proves that when he enlisted in 1995, the appli-
cant signed forms that omitted information concerning his prior arrests for larceny and 
trespass in 1992 and concerning serious injuries to his back, neck, and legs in xxxx 1993.  
The language on the DD Form 398-2 and on the Report of Medical History, which he 
signed at the time of his enlistment in 1995, is unambiguous and clearly required the 
inclusion of the omitted information. 

1. 

 
2. 

  

3. 

The  applicant  alleged  that  the  omission  of  information  concerning  his 
prior arrests was unintentional.  He stated that he hurriedly signed forms filled out by 
the  recruiters  and  assumed  the  information  about  his  arrests  was  complete.    He  also 
stated that he thought he was not required to reveal his arrests for larceny and trespass, 
which he alleged had been expunged.  However, even at a glance, it is apparent that the 
forms omit the information about his arrests for larceny and trespass.  On the DD Form 
398-2, he signed his name just two inches under the words “D.U.I. on May 1991.  Clean 
record  since.”    Moreover,  the  statement  from  the  OIC  of  the  recruiting  office  dated 
November 4, 1996, indicates that the applicant never disclosed his arrest for larceny to 
the recruiters.  Therefore, the Board is not persuaded that his omission of the informa-
tion about his arrests for larceny and trespass was not a deliberate attempt to mislead 
the Coast Guard in order to procure his enlistment. 

The applicant alleged that he omitted the information concerning his xxxx 
1993 injuries because he was no longer disabled by them and thought it was not impor-
tant.  However, the Board notes that on the Report of Medical History, the applicant did 
reveal  one  old  fracture  of  his  fifth  metacarpal.    The  Board  does  not  understand  how 
anyone who considered an old, healed break of the fifth metacarpal important enough 
to mention on the report could honestly believe the more recent, disabling injuries to his 
back, neck, and legs were not important enough to mention.  Therefore, the Board is not 
persuaded that his omission of the medical information was not a deliberate attempt to 
mislead the Coast Guard in order to procure his enlistment.   

Either the applicant’s convictions for larceny and trespass in 1992 or the 
injuries he incurred in xxxxxx 1993 could have prevented him from being enlisted in 
1995.    Therefore,  the  Board  finds  that  the  Coast  Guard  reasonably  concluded  that  he 
was subject to discharge under Article 12.B.18.b.(2) of the Personnel Manual. 

 
5. 

 
6. 

 
4. 

 
7. 

According  to  the  SPD  Handbook,  members,  such  as  the  applicant,  who 
“[p]rocure a fraudulent enlistment, induction, or period of active service through any 
deliberate material misrepresentation, omission or concealment which if known at the 
time might have resulted in rejection” and are therefore involuntarily discharged with-
out appearing before an ADB, may only be assigned the JDA separation code, an RE-4 
reenlistment code, and “fraudulent entry into military service” as a narrative reason for 
separation.  The applicant has not proved by a preponderance of the evidence that the 
Coast Guard committed any error or injustice in applying these regulations and assign-
ing him these codes on his DD Form 214. 

The applicant alleged that he was denied due process because the District 
Commander’s request to have him discharged was approved so quickly and because he 
did  not  receive  a  hearing  or  captain’s  mast.    However,  with  less  than  eight  years  of 
active service, the applicant was not entitled to a hearing or captain’s mast. Personnel 
Manual, Article 12.B.5.  Under Article 12.B.18.e., he was entitled only to submit a state-

ment on his own behalf.  The record indicates that he did so and that his statement was 
forwarded to CGPC with the District Commander’s request on November 8, 1996.  That 
CGPC reviewed the request and the applicant’s statement within a few days and issued 
his discharge orders on November 15, 1996, does not prove that his statement was not 
properly considered or that CGPC’s decision was unjust or erroneous.  Therefore, the 
applicant has failed to prove by a preponderance of the evidence that he was denied 
due process with respect to his discharge. 

 
8. 
 

Accordingly, the applicant’s request should be denied. 

 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

 

ORDER 

The  application  of  XXXXXXX,  USCG,  for  correction  of  his  military  record  is 

 
 

 
 

hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
George J. Jordan 

 

 

 
Michael K. Nolan 

 

 

 

 

 
 
Thomas A. Phemister