DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-096 
 
XXXXXXXXXXXXXXXXXXXXXXX  
   

 

 
 

FINAL DECISION 

 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title  10  and  section  425  of  title  14  of  the  United  States  Code.    The  application  was 
docketed  on  June  16, 2003,  upon  receipt  of the  applicant’s  completed  application  and 
military records. 
 
 
This final decision, dated March 25, 2004, is signed by the three duly appointed 
members who were designated to serve as the Board for Correction of Military Records 
(Board or BCMR) in this case. 
 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  upgrading  his 
bad  conduct  discharge  (BCD)  to  a  general  discharge  under  honorable  conditions  (the 
second best discharge characterization).   
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that the court-martial at which he was sentenced to a BCD 
was  a  farce.    He  alleged  that  an  attorney  did  not  counsel  him  and  no  one  testified 
against him at the court-martial.  He also alleged that he believed that he was a victim 
of racial discrimination.  The applicant further stated the following: 
 

I am a U.S. Coast Guard veteran of World War 2 from June 2, 1943 to my 
discharge in August 1945.  My Coast Guard discharge was a Bad Conduct 
Discharge.  I am of the opinion that my discharge was not correct.  I also 
served  in  the  Merchant  Marines  from  1951  to  1986.    I  believe  I  was 

discriminated against.  Black people in the 1940's, an[d] even now for that 
matter,  did  not  always  get  a  fair  hearing.    I  only  spoke  with  the  lawyer 
once.  The person I was supposed to have done something to never came 
forth to testify against me.  It was only the shore policeman's word against 
mine.  My only mistake is that when the shore policeman said someone 
accused me of pulling a knife I became afraid and ran.  I never had a knife 
on me that night.  Our uniform fitted so tight you could not carry a knife if 
you  wanted  to.    At  the  hearing  I  never  had  a  chance  to  speak  in  my 
defense.  I had no witnesses come forward to testify against me. I believe I 
was  railroaded.    I  have  reached  the  age  of  78  years  and  after  all  of  this 
time  it's  time  to  set  the  record  straight.    I  would  appreciate  your  office 
looking into this miscarriage of justice.  I deserve better.    

 

SUMMARY OF THE RECORD AND SUBMISSIONS 

 
 
The applicant enlisted in the Coast Guard on May 26, 1943 and was discharged 
on August 9, 1945.  The record reveals that at the time of his discharge, the applicant's 
average marks (on scale of from 1 to 4 with 4 being highest) were 2.50 proficiency in his 
rating and 3.25 in conduct.  The record also reveals that the applicant completed a 2-day 
firefighting course, a course of training at the Naval Armed Guard Gunnery School, and 
another course of training in Newport, Rhode Island. 
 
 
On January 16, 1944, the record shows that a deck court convicted the applicant 
of disturbing the peace, resisting arrest, and abusive and profane language to a superior 
officer.  He was sentenced to 10 days in solitary confinement. 
 
 
On  January  1,  1945,  in  accordance  with  his  plea,  a  deck  court  convicted  the 
applicant of being absent over leave (AOL) for eight days.  He was sentenced to lose $18 
of pay per month for two months.   
 
On  February  23,  1945,  in  accordance  with  his  plea,  a  summary  court-martial 
 
(SCM)  convicted  the  applicant  of  being  absent  without  leave  (AWOL)  for  three  days.  
He was sentenced to 15 days confinement suspended for six months, and to lose $25.00 
per month for two months. 
 
 
On March 6, 1945, the suspended confinement was vacated because the applicant 
refused duty and failed to obey a lawful order.  He was placed in the brig to serve 15 
days of confinement. 
 
 
On May 21, 1945, a SCM convicted the applicant of forcibly resisting arrest by a 
Navy  shore  patrol.    He  was  sentenced  to  a  BCD  and  to  lose  $25  per  month  for  six 
months.    On  May  31,  1945,  the  convening  authority  (CA)  approved  the  sentence  but 
"that portion of sentence pertaining to loss of pay [was] reduced to twenty-five dollars 

On August 9, 1945, the applicant was discharged with a BCD.   

($25)  for  a  period of  one  (1)  month"  so  that the  BCD  could  be  executed  as  quickly  as 
possible. 
 
On  August  6,  1945,  the  applicant  was  taken  before  a  captain's  mast  for  being 
 
AWOL from August 3 to August 6, 1945.  The charge was dropped to permit execution 
of the BCD. 
 
 
 
 
 
 
Discharge Review Board (DRB) 
 
On September 19, 1950, the applicant petitioned the DRB to review his BCD and 
 
to award him an honorable discharge instead.  The DRB did not upgrade the applicant's 
BCD  and  concluded  that  it  was  legal,  proper,  just  and  equitable  under  applicable 
standards  of  the  Coast  Guard  and  Naval  law  and  discipline.    The  Secretary  of  the 
Treasury approved the DRB decision on April 2, 1951. 
 

VIEWS OF THE COAST GUARD 

 
 
On  October  30,  2003,  the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request. 
 

In  recommending  denial  of  relief,  TJAG  argued  that  the  application  was 
untimely.  He stated that applications for correction of a military record must be filed 
within three years of the date of the alleged error or injustice was, or should have been, 
discovered.  33 CFR § 52.22.   He said that the Board may still consider the application, 
however, if the applicant provides sufficient evidence to warrant a finding that it would 
be in the interest of justice to excuse the failure to file timely.  As TJAG pointed out, in 
determining whether it is in the interest of justice to waive the statute of limitations, the 
Board  should  consider  the  reasons  for  the  delay  as  well  as  the  likelihood  of  the 
applicant's success on the merits of his claim.    
 

In this case, TJAG noted that the applicant admitted on his DD Form 149 that he 
discovered the alleged error on the date of his discharge in 1945.  He further stated that 
even  if  the  statute  of  limitations  began  to run  from  the  date of  the  DRB  decision,  the 
application was filed more than 50 years late.  TJAG also argued that the applicant has 
not provided a compelling reason for not filing his application sooner, offering that the 
statute  of  limitations  should  be  waived  because  he  allegedly  suffered  racial 

discrimination, which according to TJAG is not a persuasive reason to waive the statute 
of limitations, particularly in the absence of corroborating evidence.     

 
Also,  the  TJAG  argued  that  the  statute  of  limitations  should  not  be  waived 
because there is very little likelihood that the applicant will prevail on the merits of his 
claim.   In this regard the TJAG offered the following: 
 

(1)  Applicant  offered  no  evidence  to  support  his  claim  that  the  Coast 
Guard  committed  an  injustice  in  separating  him  with  a  punitive 
discharge. 
 
(2) Applicant also offered no evidence attempting to link that punishment 
to the fact that he is an African-American. 
 
(3)  Absent  strong  evidence  to  the  contrary,  government  officials  are 
presumed to have carried out their duties correctly, lawfully, and in good 
faith.    Arens  v.  United  States,  969  F.2d  1034,  1037  (1992)    .  .  .  Moreover 
applicant  bears  the  burden  of  proving  error.    33  C.F.R.  §  52.24.    Here, 
applicant offers no evidence that the Coast Guard committed an error or 
injustice.    To  the  contrary,  the  record  shows  that  Applicant  earned  the 
punitive discharge he was awarded by a court-martial based on his poor-
performance and criminal conduct. 

 
TJAG  stated  that  the  BCMR  may  review  a  SCM  only  with  respect  to  granting 
 
clemency on the sentence.  See, 10 U.S.C. § 1552(f).  However, he further stated that the 
applicant's commanding officer (CO), as convening authority, is charged with oversight 
of the entire process and has the ability to grant clemency or to set aside the decision of 
the  SCM.    He  argued  that  absent  evidence  that  the  CO's  determinations  were  clearly 
erroneous or that there was a violation of one of the applicant's substantial rights, the 
CO's decision should be upheld.  
 
 
TJAG argued that the applicant has not presented evidence that a factual or legal 
error occurred in his case.  Instead, according to TJAG, the applicant claimed that his 
punishment  was  inappropriately  severe  because  of  racial  animus.        He  advised  that 
when  assessing  the  appropriateness  of  a  punishment,  the  Board  must  be  particularly 
deferential to the broad discretion of military authorities.  He stated that the power of 
clemency like the power of pardon is intended to address extraordinary circumstances 
that  normal  legislative  and  judicial  processes  cannot  effectively  address.    See  59  AM 
JUR 2d 10-11.  He stated that the seriousness of the offense for which the applicant was 
convicted  and  received  the  BCD  and  the  other  disciplinary  actions  in  his  record 
supports and justifies the BCD.  
 

Finally,  TJAG  compared  the  military  justice  structure  that  existed  in  1945  with 

 
that of today, as follows: 
 

The military justice system in effect in 1945 differed in many respects from 
the current system contained within the Uniform Code of Military Justice.  
One of those differences is in terminology.  Applicant was sentenced to a 
[BCD]  by  a  [SCM].    At  the  time  of  Applicant's  offense  the  three  tiers  of 
courts-martial  available  were  Deck  Court,  Summary  Court,  and  General 
Court.    Today's  three-tiered  system  consists  of  Summary  Court,  Special 
Court, and General Court  . . .  [T]he court that sentenced Applicant to a 
bad  conduct  discharge  was  roughly  equivalent  to  today's  Special  Court-
Martial.    Applicant  had  already  been  to  the  less  formal  Deck  Court 
(roughly  equivalent  to  today's  [SCM])  on  two  occasions  and  to  another 
[SCM] . . . on one occasion before being tried before a second [SCM] for 
the  criminal  conduct  that  resulted  in  his  being  awarded  a  punitive 
discharge . . . The court-martial that tried Applicant was fully authorized 
to  award  a  [BCD]  and  was  roughly  equivalent  to  today's  Special  Court-
Martial, where a [BCD] would still be authorized for the same offense.      

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On November 3, 2003, the BCMR sent the applicant a copy of the views of the 

 
 
Coast Guard and invited him to respond.  No response was received. 
 
 
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's  military  record  and  submissions,  the  Coast  Guard's  submissions,  and 
applicable law: 
 

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

title 10 of the United States Code.   
 
 
2.  The application was not timely.  To be timely, an application for correction of 
a military record must be submitted within three years after the applicant discovered or 
should  have  discovered  the  alleged  error  or  injustice.    See  33  CFR  52.22.      This 
application was submitted approximately 58 years after the discharge in question and 
52 years after the DRB denied his request for an upgrade.   To be timely, it should have 
been  submitted  by  at least  April  1,  1954, three  years  after the  Secretary  approved the 
action of the DRB.   
 

 
3.  The Board may still consider the application on the merits, however, if it finds 
it is in the interest of justice to do so.  The interest of justice is determined by taking into 
consideration the reasons for and the length of the delay, and the likelihood of success 
on the merits of the claim. See Dickson v. Secretary of Defense, 68 F. 3rd 1396 (D.D.C. 
1995). 
 
 
4.  The applicant did  not state why he failed to file his application earlier than 
2003.  Thus, the Board must attempt to ascertain those reasons, and weigh them along 
with all the other evidence to do justice.  In this regard, in past decisions granting relief, 
the  BCMR  has  concluded  that  if  the  applicant  did  not  know  the  BCMR  existed  until 
recently,  that  fact  along  with  all  the  other  facts  in  those  cases  justified  waiving  the 
statute.  BCMR Nos. 322-91, 349-89, and 152-81.  The applicant joined the Coast Guard 
at 18 years of age with a seventh grade education.   The record is unclear as to when the 
applicant learned about the existence of the BCMR.  However, the fact that the Board 
received the applicant’s request through the offices of Congressman Charles Rangel (D-
NY), combined with the fact that the record shows no evidence that he was advised at 
the time of the DRB proceedings about the BCMR, suggests that he did not.  While the 
Board has ultimately concluded, as discussed below, that relief should be denied in this 
case,  it  finds  that  this  case  is  sufficiently  similar  to  the  above-cited  BCMR  cases,  and 
presents a sufficiently “close call” on the merits, that the Board should proceed to the 
merits  of  the  claim  and  not  reject  it  due  to  the  applicant’s  noncompliance  with  the 
statute of limitations. 
 
5.  The Board finds no evidence of error in this case because the 1945 SCM had 
 
the  authority  to  issue  a  BCD  as  part  of  its  sentence  at  that  time.1    Nor,  although  it  is 
clear  that  the  applicant  takes  issue  with  the  SCM’s  finding  that  he  forcibly  resisted 
arrest, is there evidence in the record sufficient to permit the Board to conclude that the 
applicant has met his burden to overcome the presumption that the SCM carried out its 
duties  correctly,  lawfully,  and  in  good  faith  when  it  found  him  guilty  of  that  charge.  
Therefore, whether the applicant’s BCD should be upgraded because of alleged injustice 
must be judged as a matter of clemency, under the standard set forth in the Department 
of  Transportation  General  Counsel's  memorandum  of  July  2,  1976.    The  General 
Counsel stated that the Board may upgrade a discharge if it is "adjudged to be unduly 
severe  in  light  of  contemporary  standards,”(emphasis  added)  but,  “the  Board  should 
not upgrade a discharge unless it is convinced, after having considered all the evidence 
[including changes in community mores, civilian as well as military, since the time of 
discharge, as well as post-service conduct, in addition to the applicant’s record], that in 
light  of  today’s  standards,  the  discharge  was  disproportionately  severe  vis-à-vis  the 
conduct in response to which it was imposed.”  As discussed below, application of this 
standard to the facts of applicant's case does not warrant relief.  
 
                                                 
1 We note that today, SCMs are prohibited from imposing BCDs. 

 
6.    There  are  several  prior  BCMR  cases  that  are  instructive  in  applying  the 
standard outlined in the General Counsel’s 1976 memorandum.  These are BCMR No. 
35-95, No. 322-91, No. 349-89, No. 89-78, No. 152-81, No. 24-81, and No. 8-80.    
 
 
7.  Some of these prior Board cases discuss the differences in rights enjoyed by an 
accused  at  a  World  War  II-era  court-martial  as  compared  to  those  enjoyed  by  an 
accused at a present day court-martial.  Unquestionably, today an accused enjoys many 
more rights under the Uniform Code of Military Justice (UCMJ) and Manual for Courts 
Martial than those who were court-martialed in World War II under the Articles of the 
Government of the Navy, 10 USC ch. 36 (1934).  However, this difference in rights is not 
itself  sufficient  justification  to  upgrade  a  BCD.    It  is,  however,  one  of  the  factors  that 
motivated the Board to proceed to the merits.   
 
8.  The Deputy General Counsel, in upgrading a BCD to a general discharge in 
 
BCMR  No.  322-91,  considered,  in  addition  to  the  forum  at  which  that  applicant  was 
convicted, his young age, his limited (tenth grade) education, his AWOL offenses (the 
applicant also had a civil conviction for petty theft of a mate's uniform), and the length 
of time he had suffered under the onus of his BCD (48 years).  The instant applicant's 
situation  is  somewhat  similar.    He  joined  the  Coast  Guard  at  18  years  of  age  with  a 
seventh  grade  education.  Moreover  the  applicant  has  suffered  under  the  onus  of  his 
BCD for 58 years.  
 
 
9.  The other factor considered by the Deputy General Counsel in BCMR No. 322-
91 was the type of offenses committed by that applicant, namely absence offenses. The 
Deputy  General  Counsel  stated,  "upgrades  from  bad  conduct  discharges  have  been 
customarily  granted  by  the  Board  where  absences  were  involved."    She  noted  that 
Chapter  12  (Separations  from  the  Service)  of  the  Personnel  Manual  did  not  prohibit 
awarding a general discharge under the circumstances in BCMR No. 322-91.  
 
 
The  offenses  committed  by  the  applicant  in  the  instant  case  were  in  some 
respects not that different from those of the applicant in 322-91.  The applicant in 322-91 
was convicted at court-martial of AWOL offenses, but he had a civil conviction for theft.  
The  applicant  in  the  current  case  was  twice  convicted  by  a  Deck  Court:  once  for 
disturbing  the  peace,  resisting  arrest,  and  abusive  language  to  a  superior  officer,  and 
once for being AWOL.  He also had an SCM conviction for a short AWOL prior to the 
SCM  that  awarded  the  BCD  for  his  conviction  for  forcibly  resisting  arrest  of  a  shore 
patrol  officer.    The  applicant's  disciplinary  history  is  also  somewhat  similar  to  the 
applicants  whose  BCDs  were  upgraded  in  BCMR  Nos.  152-812  (deck  court  and  SCM 
                                                 
2 In BCMR 152-81, the applicant was convicted at deck court for being AOL for six days and violating a 
station  order.    On  February  3,  1945,  he  went  AWOL  and  was  apprehended  on  February  24,  1945.    On 
April 5, 1945, he was convicted in a city court of two counts of theft.  On June 1945, he was convicted by a 
summary court-martial of being AWOL for 126 days and for wearing civilian clothes while AWOL.  He 
was sentenced to a BCD.  In addition, the decision noted that the applicant's final average marks were 1.7 

convictions for AWOLs, an orders violation, with a civilian conviction for two counts of 
theft)  and  349-893  (captains  mast  and  SCM  convictions  for  creating  a  disturbance, 
AWOLs and missing ship's movement).   
   
 
10.  The Board in the cases cited above did not treat the "other offenses" as a bar 
to  relief  or  to  a  finding  that  under today's  standards  those  BCDs  were  unduly  harsh.  
While the instant request is a close case, the offenses committed by this applicant are 
distinguishable from the ones in the other cases cited.  In the other cases, some of which 
involved civil offenses of theft and the military offense of creating a disturbance, none 
involved  a  conviction  involving  the  use  of  force.    In  this  case,  on  the  other  hand,  the 
applicant,  following  a  history  of  military  infractions  for  which  he  was  subjected  to 
increasing  punitive  measures,  was  convicted  at  SCM  of  forcibly  resisting  arrest  by  a 
shore  patrol  officer.    In  BCMR  322-91,  the  Acting  General  Counsel,  acting  under 
delegated authority from the Secretary, disagreed with the majority and agreed with the 
minority that a BCD should be upgraded to a general discharge because, the offenses 
for which the BCD was awarded “did not involve moral turpitude, use of force, nor were 
they  heinous  enough  to  likely  result  in  a  bad  conduct  discharge  under  contemporary 
Coast Guard standards.” (Emphasis supplied). 
 
 
11.    Moreover,  contrary  to  the  Board  decisions  in  which  clemency  powers  had 
been exercised to upgrade a discharge from a BCD to a general discharge, the majority, 
if not all, involved principally AWOL or AOL offenses.  The records in some of those 
cases revealed civil convictions for other non-absence related offenses, but in the instant 
matter all the prior offenses for which applicant was convicted were against the Coast 
Guard  and  the  one  for  which  he  received  the  BCD,  forcibly  resisting  arrest,  involved 
violence,  which  in  the  Board's  opinion  supported  the  more  severe  punishment.    In 
recent cases, the Board has refused to upgrade BCDs awarded for conduct that included 
breaking arrest, illegal use of cocaine, and having an inappropriate relationship with a 
subordinate in the chain of command.  See  BCMR Nos. 1997-180, 1999-123, and 2002-
046.   The applicant committed a violent offense and that makes his conduct comparable 
in  seriousness  to  the  offenses  in  those  cases  where  the  Board  refused  to  upgrade  the 
BCD. In the Board's opinion the offense of forcibly resisting arrest falls into that class of 
cases warranting a BCD as determined by the Deputy General Counsel in BCMR No. 

                                                                                                                                                             
for proficiency and 2.4 for conduct.  Also, the decision noted that the applicant was then incarcerated in a 
state prison for passing checks, according to the applicant. 
 
3  In  BCMR  349-89,  the  applicant's  disciplinary  history  is  described  as  follows:    "on  January  23,  the 
applicant was brought to captain's mast for creating a disturbance ashore . . . On April 6, 1943, he was 
tried by [SCM] for having been [AWOL] for sixteen days . . . On September 5, 1943, he was brought to 
captain's mast for [AWOL] for two days.  On December 21, 1943, he was tried by [SCM] and received a 
[BCD]  for  missing  the  sailing  of  his  ship  and  for  being  AWOL  for  ten  days    .  .  ."  It  is  noted  that  one 
member  dissented  in  BCMR  349-89,  and  argued  that  missing  ship’s  movement  added  an  element  that 
distinguished that case from the other AWOL or AOL cases in which the Board had granted relief.  

322-91. The applicant's situation is further aggravated by the fact that he already had 
three  other  court  convictions  when  he  was  convicted  by  the  SCM  that  awarded  the 
BCD.    Further,  in  upgrading  the  applicant's  BCD  in  BCMR  No.  322-91,  the  Deputy 
General  Counsel  relied,  in  part,  on  Articles  12.B.2  and  12.B.12  of  the  CG  Personnel 
Manual,  which  permitted  members  who  engaged  in  repeated  absenteeism  to  be 
discharged  with  a  general  discharge.  The  CG  Personnel  Manual  contains  no  such 
express provision for the offense of forcibly resisting arrest by a shore patrol officer.    
 
 
12.  Under current Coast Guard standards, a bad conduct discharge is authorized 
for the offense of which applicant was convicted in 1945.  The fact that such punishment 
is authorized does not by itself mean, of course, that it necessarily is imposed in such 
cases.  The Board believes that the applicant’s case might well have a different and less 
punitive  outcome  in  today’s  Coast  Guard,  especially  in  light  of  the  substantially 
improved procedural protections now in place.  The possibility of a different outcome is 
not the standard the Board must apply, however.  The Board must be convinced that a 
bad  conduct  discharge  for  the  offense  of  forcibly  resisting  arrest,  and  in  light  of  the 
previous record of misconduct compiled by the applicant, is disproportionately severe 
under current standards, and as discussed above it is not so convinced. 
 
 
13.  The Board also considered the fact that the applicant served thirty-five years 
in the Merchant Marine, combined with the absence of any record evidence suggesting 
any negative equities  with respect to the applicant’s conduct since 1945.  Post  service 
conduct may be considered in deciding whether to upgrade a BCD, but it alone may not 
form  the  basis  for  doing  so.  See  General  Counsel's  memorandum,  BCMR  and 
"Clemency", July 2, 1976. 
  

14. For the foregoing reasons, the application is denied.  

 
 
 
 
 

 
 
 

ORDER 

 

 

 

 
 

 
 

 
 

        

The  application  of  former  xxxxxxxxxxxxxxxxxxx  USCG,  for  correction  of  his 
military  record,  to  upgrade  his  discharge  from  the  Bad  Conduct  Discharge  to  an 
honorable discharge under general conditions, is denied.