DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-097 
 
  
   

 

 

FINAL DECISION 

 
 
This is a proceeding under the provisions of section 1552 of Title 10 and section 
425 of Title 14 of the United States Code.  It was docketed on June 16, 2003, upon the 
Board’s receipt of the applicant's complete application for the correction of his military 
record. 
 
 
members who were designated to serve as the Board in this case.  
 

This final decision, dated April 29, 2004, is signed by the three duly appointed 

APPLICANT'S REQUEST 

 
 
 

The applicant asked that his military record be corrected as follows: 

To remove all records of any nature, which in any manner pertain to [his] 
being accused of, and convicted of any offense of which he was acquitted 
by  the  trial  court,  or  which  was  set  aside  by  the  Coast  Guard  Court  of 
Criminal Appeals. 
 
To reflect that [he] remained on continuous active duty from the date of 
his initial enlistment in the Coast Guard (26 January 1981) until the date of 
his discharge on 31 October 2001. 
 
To reflect that [he] was retired from the Coast Guard on 31 October 2001 
and to award [him] back retirement pay retroactive to 31 October 2001. 
 
To  correct  the  Certificate  of  Release  or  Discharge  from  Active  Duty  to 
properly reflect the dates of service, and to reflect separation authority of 
[Personnel Manual], Article 12.B.2.f.(1)(a)(2) [expiration of enlistment], re-

entry code of RE1 and narrative reason for separation of Retirement from 
the Coast Guard.   
 
For  other  relief 
circumstances.   

.  as  may  be  deemed  appropriate  under  the 

. 

. 

 

BACKGROUND 

 

The applicant enlisted in the Coast Guard on January 26, 1981.  He was promoted 

On  July  3,  1997,  the  applicant  completed  his  45  days  of  confinement  and  was 

 
regularly and eventually reached pay grade E-6 (petty officer first class).  
 
 
In a May 1997 General Court-Martial, the applicant was convicted of attempted 
forcible sodomy, maltreatment by sexual harassment, indecent assault, and solicitation 
to  commit  sodomy  as  an  indecent  act.  The  applicant's  sentence  included  confinement 
for 45 days, reduction in rank to pay grade E-3, and a discharge from the Coast Guard 
with  a  bad  conduct  discharge  (BCD).  The  charges  grew  out  of  a  single  incident  and 
involved  a  petty  officer  third  class  (E-4),  a  rank  two  pay  grades  below  that  of  the 
applicant.   
 
 
placed on appellate leave. 1   
 
 
On  June  29,  2001,  the  United  States  Coast  Guard  Court  of  Criminal  Appeals, 
(CGCCA)  disapproved  all  the  guilty  findings  except  the  lesser  included  offense  of 
attempt to commit consensual sodomy, on the ground that evidence offered in support 
of  the  other  offenses  did  not  persuade  the  Court  beyond  a  reasonable  doubt  that  the 
applicant was guilty of the offenses.  The court reassessed the sentence and approved 
the 45 days of confinement and reduction to pay grade E-5.  The BCD was set aside.  See 
United States v. Matthews, CGCMG 0128 (2001). The incident for which the applicant 
was court-martialed occurred in June 1996.   The CGCCA's evaluation of the evidence 
provides background: 
 

In  June  1996,  [the  applicant]  and  DC3  A  [alleged  victim]  were  sent  on 
temporary  duty  to  another  state  for  several  days  in  order  to  perform 
maintenance  work  on  a  Coast  Guard  ship  located  there.    During  this 
temporary duty they stayed in a local motel.  After completing their work 
one afternoon, [the applicant] asked DC3 A if she would like a ride to the 
local beach.  They drove to the beach in the government truck they were 

                                                 
1  Appellate leave is the "member's leave of absence (excess absence) from the Coast Guard without pay 
and  allowances,  unless  he  or  she  has  accrued  earned  leave,  while  legal  review  of    the  court-martial 
occurs."  See Article 7.A.21.e. of the Personnel Manual.   
 

using for transportation.  Once at the beach they went their separate ways 
until  it  was  time  to  depart.    Before  returning  to  their  motel,  they  had  a 
meal together in a local beach bar.  They each had several beers with their 
food, and DC3 A made two telephone calls including a call to her fiancé 
with whom she argued.   

What happened upon their return to the motel is in dispute.  However, CGCCA 

 
 
found no dispute with respect to the following facts: 
 

(1) DC3 A went to the [applicant's] room voluntarily on her own initiative; 
(2) Appellant at some point exposed his penis to DC3 A; (3) DC3 A did not 
leave  or  attempt  to  leave  when  Appellant  exposed  himself  to  her;  (4)  
there  were  some  verbal  and  physical  overtures  for  DC3  A  to  engage  in 
oral  sexual  contact  with  [the  applicant];  (5)  no  oral  sexual  contact 
occurred.  It is clear that by his undisputed actions with a subordinate in 
his  chain  of  command,  [the  applicant]  violated  the  general  regulation 
against  fraternization.    However,  [the  applicant]  was  not  charged  with 
violating this regulation.  It is also clear that [the applicant] attempted to 
have  DC3  A  engage  in  oral  sex  with  him,  notwithstanding  Appellate 
Defense Counsel's argument to the contrary.   
 
Key facts that are in dispute include whether: (1)  [the applicant] lowered 
his  shorts  and  exposed  his  penis  without  encouragement,  or  DC3  A 
invited this conduct by asking to see his penis after she had displayed the 
tattoo on her pubic mound [to the applicant]; (2)  [the applicant] tried to 
force DC3 A to engage in oral sex . . . or they engaged in mutual foreplay 
that  was  never  consummated;  (3)  DC3  A's  wrists  were  pinned  by  [the 
applicant's] knees and he attempted to force his penis into her mouth as 
she  lay  on  the  bed,  or  [the  applicant]  simply  lay  on  top  of  her  as  they 
"bumped and grinded" while still wearing their clothes; (4) DC3 A caused 
[the applicant] to stop by forcefully biting him on his shoulder, or DC3 A 
laughed  and  gave  him  a  kiss  after  [the  applicant]  stopped  with  the 
observation that "this isn't going to happen." 
 

  * 

 

 

* 

* 
 

Ultimately,  this  case  boils  down  to  a  swearing  contest  between  the  two 
involved  parties.    Consequently,  the  resolution  of  the  disputed  fact 
inevitably  requires  an  assessment  of  these  witnesses'  credibility.    As 
already  noted,  the  character  witnesses  for  [the  applicant]  established  his 
reputation  for  outstanding  performance  and  dependability. 
  Their 
assessment  of  his  veracity  stood  in  sharp  contrast  to  the  testimony 
concerning DC3 A's character.  Her co-workers, even a friend and former 

roommate, all expressed serious reservations about her truthfulness.  We 
find the stark contrast between the assessments of those who knew them 
to be especially significant.  While we will never know with certainty what 
actually  happened  in  [the  applicant's]  motel  room,  we  have  concluded 
there is ample reason to doubt DC3 A's version of those events.  We are 
constrained  to  disapprove  any  charged  violation  for  which  we  are 
persuaded  there  is  reasonable  doubt.    Having  considered  the  record  in 
this case and the evidence that supports the trial court's findings, it is clear 
that,  based  on  his  own  testimony,  Appellant  demonstrated  remarkably 
poor  judgment,  violated  the  service  regulation  governing  interpersonal 
relationships,  and  attempted  to  engage  in  oral  sodomy  with  DC3  A.  
However,  we  do  not  find  the  most  serious  charges  in  this  case  proven 
beyond a reasonable doubt.   
 
 
On August 15, 2001, the applicant submitted a request for reinstatement in the 
Coast Guard at pay grade E-6.  The request was denied without explanation on August 
29, 2001. 
 
 
On  September  17,  2001,  the  applicant's  appellate  defense  counsel  submitted  a 
Request for Redress on behalf of the applicant requesting back pay, reenlistment or, in 
the alternative, voluntary retirement.   
 
 
eligible to join the Thrift Savings Plan. 
 
 
On  October  17,  2001,  Commander,  Coast  Guard  Personnel  Command  (CGPC) 
replied  to  the  applicant's  September  17,  2001  Request  for  Redress.    CGPC  told  the 
applicant that he would be paid back pay and allowances as a DC2 subject to statutory 
setoffs.  With respect to retirement, CGPC stated "We have found no statutory basis to 
consider  .  .  .  extensive  periods  of  appellate  leave  as  "creditable  service"  toward  a 
twenty-year retirement."2  CGPC further advised the applicant that his last day of active 
service  occurred  on  July  3,  1997,  when  the  applicant  commenced  appellate  leave,  at 
which point he had sixteen years, three months, and five days of active service. 
 
 
On  October  31,  2001,  the  applicant  was  issued  an  Honorable  Discharge 
Certificate, which said, "Certificate is awarded as a testimonial of Honest and Faithful 
Service."     The applicant was also given a DD Form 214 showing his separation date as 
                                                 
2   The Coast Guard sought an advisory opinion from the Department of Defense, Office of Hearings and 
Appeals (DOHA), to confirm the fairness and reasonableness of its decision not to reinstate, reenlist, or 
retire the applicant.  DOHA determined that DOHA lacked authority to reinstate or reenlist the applicant.  
On the issue of retirement, DOHA stated that "we do not see how the claimant's period of appellate leave, 
particularly the excess leave portion, qualifies as active service for the purposes of 14 U.S.C. 355 for the 
simple reason that the claimant did not perform any service for the Coast Guard during that period."   

On  September  28,  2001,  the  Commandant  notified  the  applicant  that  he  was 

October 31, 2001, his net service for the recent enlistment as six years, four months, and 
11 months, his separation code as JND (separation for general/miscellaneous reasons), 
and  his  reenlistment  code  as  RE-4  (not  eligible  for  reenlistment).    The  DD  Form  214 
noted that the applicant had incurred lost time from June 6, 1997 to October 31, 2001.   
 
 
On  February  7,  2002,  the  applicant's  civilian  attorney  requested  the  applicant's 
reinstatement to active duty as an E-5 rather than an E-6.   On August 5, 2002, CGPC 
responded  to  this  request  stating,  "The  decision  to  discharge  [the  applicant]  was 
administrative  and  based  on  the  provisions  of  Article  7.A.21.h(3)  of  the  Coast  Guard 
Personnel Manual."  Also, CGPC corrected the DD Form 214 by issuing a DD Form 215 
showing date as July 2, 1997, the date the applicant was placed on appellate leave, as 
the date of discharge. 
 

APPLICANT'S ALLEGATIONS 

 
 
The  applicant  argued  that  he  has  been  wrongfully  denied  his  entitlement  to 
retirement from the Coast Guard, as well as assorted other benefits.  In this regard, the 
applicant stated that the Coast Guard summarily discharged him on October 31, 2001, 
in violation of 12.B.5.c. of the Personnel Manual, which provides that a member of the 
Coast Guard with more than eight years of service cannot be separated from the Coast 
Guard  unless  he  is  afforded  the  right  to  appear  before  a  reenlistment  board.    The 
applicant did not have a reenlistment board.  He argued there is nothing to support any 
contention that his command would have processed him for administrative separation 
based solely upon a conviction for attempted consensual sodomy. 
 
 
The  applicant  argued  that  time  on  appellate  leave  is  creditable  service  for 
retirement.    In  this  regard  he  stated  that  Article  12.C.2  of  the  Personnel  Manual 
provides  that  for  enlisted  members,  active  service  in  the  Coast  Guard  is  creditable 
toward  retirement.    He  further  stated  the  following:    "10  U.S.C.  §  101  (d)(3)  defines 
'active service' as being synonymous with 'active duty.'"  He stated that at the time of 
his court-martial, he had honorably served on active duty for a period of 16 years, five 
months, and 27 days.  At that time, he was also serving on a six-year enlistment, which 
was scheduled to terminate on January 25, 2001. 
 
 
The applicant argued that the fact that certain actions by the Coast Guard after 
his BCD had been set aside support his contention that he is entitled to reinstatement 
and/or retirement.  Such actions consisted of issuing him a discharge certificate with an 
October 31, 2001 separation date, paying him for the period he was on appellate leave, 
and advising him that he was eligible for the Thrift Savings Plan on September 28, 2001.  
 
The  applicant  contended  that  it  is  evident  upon  close  scrutiny  of  the  facts  that 
 
but for his wrongful conviction of numerous offenses he would not have been placed on 
an appellate leave status on July 3, 2001.  He pointed out that it took four years for the 

appellate  courts  to  review  his  case  and  during  which  time  he  was  on  appellate  leave 
and  subject  to  the  control  of  and  recall  by  the  Coast  Guard.    The  applicant  further 
argued that the Coast Guard has imposed upon him the most serious consequences a 
member  of  the  military  can  face  -  loss  of  retirement  income  and  benefits  for  life-- 
without due process.   

 
 
In  support  of  his  application,  the  applicant  noted  his  favorable  service  record.  
During  his  military  career,  he  had  been  assigned  to  nine  different  commands  and 
attended 26 different schools or training courses.  He had also received the following 
awards and decorations: 
 

Good Conduct Medal x 5; Coast Guard Meritorious Team Commendation 
x  2;  Coast  Guard  Achievement  Medal  x  2;  Letter  of  Commendation  x  3; 
Expert  45  Cal  Pistol  Medal;  Expert  M-16  Rifle  Medal;  Sea  Service  w/  1 
Bronze Star; Coast Guard Meritorious Unit Commendation; Coast Guard 
Bicentennial  Unit  Commendation; 
Joint  Meritorious  Unit  Award; 
September  1993  Coast  Guardsman  of  the  Quarter;  Idea  Express  MLCA-
331-93(M)  Award;  Idea  Express  MLCA-288-93(M)  Award;  Coast  Guard 
Special  Operations  Service  Ribbon;  Armed  Forces  Expeditionary  Service 
Medal; [and] National Defense Medal.   

 

VIEWS OF THE COAST GUARD 

 
On November 17, 2003, the Board received the advisory opinion from the Judge 
 
Advocate  General  (TJAG)  of  the  Coast  Guard,  recommending  that  the  Board  deny 
relief.  He argued that the applicant had failed to meet his burdens of production and 
persuasion.   
 
 
TJAG  stated  that  under  Article  7.A.21.h.  of  the  Personnel  Manual,  the  Coast 
Guard  was  under  no  obligation  to  reinstate  or  reenlist  the  applicant.    He  noted  that 
under this provision, the applicant was granted the right to request reinstatement if his 
BCD were set aside, but it was up to the designated Coast Guard officer to either grant 
or deny that request.  TJAG stated that no one has a right to remain in the Armed Force 
unless  a  specific  statute  or  regulation  grants  that  right.    Dodson  v.  United  States 
Government, 988 F.2d 1199, 1203, 1204 (Fed Cir. 1993).  According to TJAG, the military 
officer's  decision  to  deny  the  applicant's  request  for  reenlistment  is  entitled  to  the 
presumption that he carried out his duties correctly, lawfully, and in good faith.  Arens 
v. United States, 969 F.2d 1034, 1037 (D.C. Cir. 1992).   TJAG argued that the nature and 
circumstances  of  the  applicant's  conduct  that  resulted  in  his  court-martial  and  his 
remaining conviction provided more than ample information for Commander (CGPC-
emp) to conclude that his reenlistment was not in the best interest of the Coast Guard.   
 

 
TJAG  maintained  that  the  applicant  was  not  entitled  to  an  Administrative 
Discharge Board (ADB) or a Reenlistment Board (REB).  He noted that Article 7.A.21.h 
of  the  Personnel  Manual  specifically  provided  that  the  applicant's  presence  was  not 
required  to  effect  his  discharge,  unless  the  Coast  Guard  was  contemplating  an  Other 
than  Honorable  Discharge.    According  to  TJAG,  this  provision  stated  that  a  "service 
record review -- without the member's presence -- is sufficient to determine the nature 
of a discharge based on expiration of enlistment."  TJAG cited Keef v. United States, 185 
Ct. Cl. 723-4 (1968), for the proposition that "an honorable discharge for the convenience 
of  the  government,  without  more,  is  within  legally  proper  bounds  when  effected 
without  a  hearing,"  and  that  an  "individual's  release  -  based  on  unique  and  unusual 
circumstances not covered elsewhere in regulations was not stigmatizing and thus did 
not require a hearing."  TJAG argued that Article 7.A.21.h., being a specific provision on 
the subject of appellate leave takes precedence over Article 12.B.5.c., which is a general 
discharge provision granting reenlistment boards to members with over eight years of 
service and who are not recommended for reenlistment.    
 
 
With  respect  to  the  applicant's  request  for  retirement,  TJAG  stated  that  the 
applicant has not met the statutory requirements for retirement.  He stated that section 
355 of title 14 of the United States Code permits a member on full time active duty to 
voluntarily retire with the approval of the Commandant, if the member has completed 
20 years of full time active service.  He argued that the applicant was neither in a full 
time  active  duty  status  at  the  time  of  his  application  for  retirement,  nor  had  he 
completed 20 years of full time active service at the time he requested retirement.  He 
stated that the term "active service" as used in the statute means "full time active duty in 
the Coast Guard."  He stated that the Decision of the Comptroller General B-167647 of 
October 21, 1970 and sections 101 (d)(1) and 101 (d)(3) of title 10 of the United States 
Code  support  the  definition  that  full  time  active  service  mean  full  time  active  duty. 
TJAG further stated that the Comptroller General stated in B-189768 of April 15, 1975 
that  "full  duty  is  attained  when  a  member  .  .  .  is  assigned  to  perform  useful  and 
productive duties."  
 
 
the member from military service.  He further stated as follows: 
 

TJAG  stated the purpose of placing a member on extended leave is to unfetter 

Appellate  extended  leave  permits  the  member  to  enter  the  civilian 
community  and  to  pursue  civilian  goals.    The  fact  that  a  member  on 
appellate extended leave could be recalled to full duty is a minute formal 
technicality originating in the legal need to retain military control over the 
member solely for the purpose of completing action on the court martial.  
An involuntary recall to full time duty of a member on appellate extended 
leave is never imminent but only the remotest possibility. 
 
 

 
TJAG argued that the limited exception under 10 U.S.C. 707 to the no pay and 
allowance  restriction  in  37  U.S.C.  502(b)  for  periods  while  on  excess  leave  does  not 
make the time spent on appellate excess leave full time active duty.  In this regard he 
stated the following: 

 
The  limited  pay  entitlement  under  10  U.S.C.  707  did  not  transform 
appellant's  excess  leave  into  constructive  full  time  duty,  and  thereby 
render him eligible to apply for a voluntary retirement under 14 U.S.C. § 
355 and be retired.  As set forth by the Comptroller General in B-126240 of 
April  4,  1956,  a  member  is  only  entitled  to the  pay  and  allowances,  and 
other benefits, mentioned in the [pertinent statute] and not any benefit or 
payment  other  than  those  specifically  named  in  the  statute.    The  clearly 
expressed remuneration under 10 U.S.C. 707 for time spent on appellate 
extended  leave  specifically  provides  a  limited  entitlement  to  pay  and 
allowances, subject to civilian earnings offset, and it does not provide any 
benefits beyond the specific language of the statute.  No provision of 10 
U.S.C.  707  makes  the  time  spent  on  appellate  extended  leave  a 
constructive full time active duty.  Once again, applicant does not have 20 
creditable  full  time  active  duty  years  to  qualify  for  retirement  under  14 
U.S.C. 355.   

Finally TJAG concluded that the Coast Guard acted properly in the applicant's 

 
 
case, and none of the applicant's records are in need of correction.   
 

APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD 

 
 
On January 29, 2004, the Board received the applicant’s response to the views of 
the Coast Guard.  The applicant argued that subsequent to his affirmed conviction for 
the attempt to commit consensual sodomy, the Supreme Court, in Lawrence v. Texas, 
123 S. Ct. 2472 (2003), ruled that a private sexual act between consenting adults is not a 
criminal offense.  The applicant argued that under current rulings of both the CGCCA 
and the U.S. Supreme Court, the applicant's act of attempted consensual sodomy is not 
now considered to be a criminal offense, but his promising career has been wrongfully 
terminated along with his right to retirement benefits.   
 
 
The applicant requested that as alternative relief, the Board grant him retirement 
under the Temporary Early Retirement Authority (TERA), of section Pub. L. No. 102-
484 of 23 October 1992 (as amended by section 542d, Public Law 103-337 of 5 October 
1994.  Under this act, the Secretary of Transportation was authorized to reduce the 20-
years creditable service requirement for retirement to 15 years during the period from 
20 September 1994 through 30 September 2001.  The applicant stated he had 15 years of 
active duty on January 26, 1996. 

 

SUPPLEMENTAL VIEWS OF THE COAST GUARD 

 

the 

found 

issue,  and  no  other  service  courts  have 

 
TJAG stated that the effect of the Supreme Court's ruling in Lawrence v. Texas 
remains  to  be  seen.    He  stated  that  the  Coast  Guard's  appellate  courts  have  not  yet 
addressed 
the  statute 
unconstitutional.    He  stated  that  the  constitutionality  of  Article  125  (sodomy)  of  the 
Uniform Code of Military Justice (UCMJ) was argued before the Court of Appeals for 
the  Armed  Forces  in  the  case  of  United  States  v.  Marcum,  59  M.J.  131  (2003),  but  no 
opinion has been issued. 
 
 
With  respect  to  the  applicant's  request  to  be  retired  under  TERA,  TJAG  stated 
that  that  authority  has  expired.    He  stated  that  Congress  designed  TERA  as  a  tool  to 
assist the military in meeting the downsizing requirements imposed by Congress.  He 
further stated that TERA was never intended to be, nor was it used in the Coast Guard 
as an entitlement.   
 
APPLICANT'S REPLY TO THE SUPPLEMENTAL VIEWS OF THE COAST GUARD 

 

The applicant stated that while no Armed Forces Court has issued a decision on 
 
the criminality of sodomy, the Supreme Court has made it abundantly clear that private 
sexual conduct between consenting adults is not a criminal act.   He also argued that 
while  TERA  was  not  an  entitlement,  "justice  would  permit  the  application  of  TERA 
retirement authority in the applicant's case, especially in light of Lawrence v. Texas."   
 

APPLICABLE LAW AND REGULATIONS 

 

United Stated Code 
 
Congress  implemented  appellate  leave  at  10  U.S.C.  §  876a.,  which  states  that  under 
regulations prescribed by the Secretary concerned, an accused whose sentence includes 
an  approved  unsuspended  BCD  may  be  required  to  take  leave  until  such  time  as 
appellate review and final action is taken on the case.  Section 706(a) of title 10 of the 
United States Code orders such leave to be charged against accrued earned leave, and if 
there  is  none,  such  leave  shall  be  charged  as  excess  leave.    Subsection  (b)(2)  of  the 
provision states that a member may not accrue or receive pay or allowances during a 
period of leave required to be taken under § 876(a) of title 10. However section 707 of 
title  10  mandates  that  a  member  receive  pay  and  allowances  for  the  time  spent  on 
appellate leave if the punitive discharge is set aside and no rehearing is ordered. 
 
Coast Guard Personnel Manual 
 
 
deducted from active service on a day-for-day basis. 

Article  7.A.11.b.  states  that  periods  of  excess  leave  or  leave  without  pay  are 

 
 
Article  7.A.21.e  states  that  all  military  members  who  receive  a  court-martial 
sentence, including a punitive discharge or dismissal from the Service approved by the 
convening  authority,  are  placed  in  a  required  appellate  leave  status,  with  command 
approval.  Also, it states that required appellate leave is the member's leave of absence 
(excess leave) from the Coast Guard without pay and allowances, unless he or she has 
accrued earned leave while legal review of the court-martial occurs.  It further states as 
follows: 
 

Appellate  leave  begins  the  date  after  the  convening  authority  approves 
the punitive discharge or dismissal portion of the sentence, if it does not 
include  confinement.    If  the  sentence  includes  confinement,  required 
appellate  leave  begins  the  date  released  from  confinement.    If  the 
convening  authority  or  a  higher  authority  approves,  suspends,  or  sets 
aside  the  punitive  discharge  or  dismissal  by  the  date  the  required 
appellate  leave  is  to  begin,  the  member  will  not  be  placed  in  a  required 
appellate leave status.  If the Court of Military Review, Court of Military 
Appeals,  or  U.  S.  Supreme  Court  remits  or  sets  aside  the  punitive 
discharge after the member begins appellate leave, he or she is entitled to 
all  back  pay  and  allowances  accruing  from  the  date  he  or  she  began 
appellate leave, less the period of accrued leave taken or for which paid 
and  less  deductions  for  earned  civilian  income  received  during  leave.  
Civilian  income  includes  wages,  salaries,  tips,  other  personal  service 
income, unemployment compensation, and public assistance benefits from 
any Government agency.   

 
 
Article 7.A.21.f. states that members who have accrued leave may elect either to 
be paid a lump sum for that leave or to use the accrued leave.   When any accrued leave 
is exhausted, leave continues as leave without pay and allowances.   
 
 
follows: 
 

Article  7.A.21.h.  sets  forth  the  entitlements  of  members  on  appellate  leave,  as 

The  member  and  his  or  her  dependents  are  entitled  to  Government 
transportation  by  the  least  costly  means  available  from  the  permanent 
duty station to the home of record or place where he or she entered the 
Service. 
 
If  a  rehearing  is  ordered,  the  member  may  be  recalled  from  leave  for 
further court-martial proceedings.  Travel is at Government expense. 
 
Shipment  of  household  goods  may  be  authorized.    Once  the  appellate 
review  process  is  completed,  if  it  upholds,  the  member's  punitive 

discharge  or  dismissal,  Commander,  (CGPC-epm)  or  (CGPC-opm)  will 
effect  the  discharge.    If  the  sentence  is  set  aside  and  charges  dismissed 
during the appellate process, dismissal or punitive discharge is remitted 
or  set  aside,  or  the  Commandant  grants  clemency,  the  member  has  15 
days  from  the  date  he  or  she  is  notified  (date  of  service)  or  the  date  of 
attempted  service  to  petition  Commander,  (CGPC-epm)  or  (CGPC-opm) 
for restoration or reenlistment.  If (CGPC-epm) or (CGPC-opm) denies the 
member's  petition,  discharge  for  the  convenience  of  the  Government  or 
enlistment  expiration  with  the  type  of  discharge  warranted  by  the 
member's service record will be directed.   Unless discharge Under Other 
than Honorable Conditions is contemplated, the member's presence is not 
required to effect discharge.  If the member is restored to duty or allowed 
to reenlist, he or she is entitled to travel at Government expense.   

 

 
According to Article 7.A.21.i , before a member departs on appellate leave, the 
commanding officer must, among other things, ensure that the member has been given 
a  medical  examination,  that  a  DD  Form  214  has  been  prepared  to  the  extent  possible 
and  the  member  has  signed  it,  that  the  member's  pay  has  been  stopped,  and  the 
member  has  been  administratively  assigned  to  the  Commanding  Officer,  Human 
Resources Service and Information Center.   
 
 
and obligations to the Coast Guard while in an appellate leave status. 
 

According to Article 7.A.21.j. the member is given a letter explaining his rights 

FINDINGS AND CONCLUSIONS 

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

1.  The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

2.    The  applicant  requested  an  oral  hearing.    The  Chair,  under  section  52.31  of 
title 33, Code of Federal Regulations, recommended disposition on the merits without a 
hearing.  The Board concurred in that recommendation. 
 

3.    In  May  1997,  the  applicant  was  convicted  at  a  General  Court-Martial  of 
attempted forcible sodomy, maltreatment by sexual harassment, indecent assault, and 
solicitation  to  commit  sodomy  as  an  indecent  act.    He  was  sentenced  to  a  BCD, 
confinement  for  45  days,  and  reduction  in  rate  to  pay  grade  E-3.      After  serving  his 
period  of  confinement,  he  was  placed  on  appellate 
leave  on  July  3,  1997.  
Approximately four years later, on June 29, 2001, the CGCCA disapproved all findings 

of  guilty,  except  for  a  lesser-included  offense  of  attempted  consensual  sodomy.    The 
Court reassessed the applicant's sentence, setting aside the BCD and approving only the 
45 days of confinement and reduction in rate to pay grade E-5.  After receiving notice of 
the CGCCA's decision, the applicant requested to be paid pay and allowances for the 
period spent on appellate leave, to be either reinstated or reenlisted on active duty, or in 
the alternative to be retired from active duty, with 20 years of service or with a 15-year 
retirement under TERA.  The Commandant granted the applicant's request for pay, but 
disapproved his request for reinstatement, reenlistment, or retirement.  On October 31, 
2001, the applicant was discharged from the Coast Guard, with approximately 17 years 
of creditable service.   

 
4.  The  Board  is  not  persuaded  by  the  applicant's  argument  that  he  should  be 
reinstated/reenlisted in or retired from the Coast Guard because he was convicted only 
of attempted consensual sodomy and that if he had not been wrongfully convicted of 
attempted forcible sodomy, maltreatment by sexual harassment, indecent assault, and 
solicitation to commit sodomy as an indecent act, he would not have been sentenced to 
the BCD that led to his placement on appellate leave. 

 
5. In making this argument, the applicant glosses over the fact that his conviction 
for attempted consensual sodomy occurred against an E-4 subordinate in his chain of 
command. While the more serious guilty findings against the applicant were set aside, 
the applicant was not totally exonerated and stands convicted of attempted consensual 
sodomy,  a  violation  of  the  UCMJ.    The  applicant,  a  senior  enlisted  person,  used  very 
poor judgment in allowing himself to become involved in this unfortunate situation.  It 
was within the discretion of the applicant's commanding officer (CO) to determine how 
to  dispose  of  the  charges  against  the  applicant.    The  CO  did  not  commit  an  error  or 
injustice by referring the applicant's case to court-martial.   

 
6.    In this  regard,  the Board  notes  that  the  applicant  was  tried  under  the  laws, 
rules and regulations mandated for courts-martial.  Appellate leave is a part of the post-
trial process if a sentence includes a punitive discharge.  Congress authorized this status 
at  10  U.S.C.  §  876a.,  which  states  that  under  regulations  prescribed  by  the  Secretary 
concerned, an accused whose sentence includes an approved unsuspended BCD may be 
required to take leave until such time as appellate review and final action is taken on 
the  case.    Section  706(a)  of  title  10  of  the  United  States  Code  directs  such  leave  to  be 
charged against accrued earned leave, and if there is none, such leave shall be charged 
as excess leave.  Subsection (b)(2) states that a member may not accrue leave or receive 
pay or allowances during a period of appellate leave required to be taken under section 
876(a) of title 10.  However section 707 of title 10 mandates that a member receive pay 
and  allowances  for  the  time  spent  on  appellate  leave  if  the  punitive  discharge  is  set 
aside and no rehearing is ordered.  Accordingly, the applicant was awarded pay and 
allowances subject to appropriate setoffs.   

 

7.    The  applicant  did  not  have  the  necessary  20  years  of  active  service  for 
retirement, as required by 14 U.S.C. 355 and 12.C.10 of the Personnel Manual.  The time 
applicant spent on appellate leave is not time spent in active service and therefore is not 
creditable  for  retirement  purposes.    According  to  section  101  of  title  10  of  the  United 
States  Code,  active  service  means  service  on  active  duty.    This  section  defines  active 
duty as full-time duty in the  active military service of the United States and includes 
full-time  training  duty,  annual  training  duty,  and  attendance  at  a  service  designated 
school.  The applicant performed no training or military duties while on appellate leave. 
Article 7.A.11.b. of the Personnel Manual states that excess leave or leave without pay 
(as is appellate leave) are deductible from active service on a day for day basis. 

 
8.  The applicant's suggestion that his eventual receipt of pay and allowances for 
the  time  spent  on  appellate  leave  period  means  that  time  is  creditable  service  for 
retirement  purposes  ignores  the  fact  that  section  101  of  title  10  never  mentions  the 
receipt  of  pay  in  its  definition  of  active  service  or  active  duty.  As  stated  above,  the 
statute  defines  full  time  active  service/active  duty  that  includes  military  training, 
schooling, or duties.  Congress specifically mandated pay and allowances for members 
on appellate leave if their punitive discharge is set aside, as in the applicant's case; it did 
not  mandate,  however,  that  a  member  whose  punitive  discharge  is  set  aside  receive 
service  credit  for  time  spent  on  appellate  leave.  Nothing  in  the  law  or  Coast  Guard 
regulations requires that a member on appellate leave whose punitive discharge is set 
aside  receive  service  credit  for  appellate  leave.  The  applicant  has  failed  to  submit 
sufficient  evidence  showing  that  his  four  years  of  appellate  leave,  during  which  he 
performed no military duties, schooling, or training, should be creditable for retirement 
purposes.  

 
9.  The  applicant  requested  that  he  be  allowed  to  retire  under  TERA,  which 
authorized retirements with at least 15 years of service, if the Board does not grant a 20 -
year  retirement.    He  argued  that  retirement  under  TERA  would  be  a  fair  and  just 
outcome of his case.  The Deputy General Counsel ruled in BCMR No. 2002-040 that the 
Coast Guard commits an injustice against a member when its actions shocks one's sense 
of  justice.    See  Reale  v.  United  States,  208  Ct.  Cl.  1010  (1976).    The  Coast  Guard's 
treatment of the applicant in this case does not shock the Board's sense of justice, such 
that  we  need  to  consider  retroactively  retiring  the  applicant  under  TERA.    It  was  his 
poor judgment that caused this situation.  Moreover, TERA was a tool to be used for 
downsizing  personnel;  it  was  not  a  tool  to  be  used  for  retiring  members  who  had 
engaged in misconduct. 
 
 
10.  The statute authorizing appellate leave is silent on the issue of reinstatement 
or  reenlistment  on  active  duty  when  a  punitive  discharge  is  set  aside.    However,  the 
statute  authorizes  the  Service  Secretaries  to  prescribe  regulations  implementing 
appellate leave. The Commandant, acting under delegated authority, implemented the 
appellate  leave  regulation  at  Article  7.A.21.h.  of  the  Personnel  Manual.    Under  the 

regulation, a member whose punitive discharge is set aside may request reinstatement 
or  reenlistment,  and  if  that  request  is  denied,  the  member  is  to  be  discharged  for  the 
convenience of the government or for expiration of enlistment.  The applicant received 
an honorable discharge for the convenience of the government (miscellaneous/general 
reasons).    The  Board  can  find  no  abuse  of  discretion  in  the  Commandant's  refusal  to 
reinstate or reenlist the applicant.  In this regard, the Board notes that the applicant was 
convicted  of  attempted  consensual  sodomy,  in  violation  of  Article  125  of  the  UCMJ.  
Such  conviction  was  a  sufficient  basis  for  the  Commandant  to  refuse  the 
reinstatement/reenlistment of the applicant.  It should also be noted that the applicant 
attempted to engage in this prohibited conduct with an E-4 subordinate in his chain of 
command.   

 
11.  The applicant's argument that he was entitled to a reenlistment board or an 
administrative separation board prior to his discharge because he had more than eight 
years  of  military  service  is  without  merit.    The  specific  appellate  leave  regulations 
trump  the  general  separation  regulations.  Article  7.A.21.h.  of  the  Personnel  Manual 
specifically  states  that  if  the  request  for  reenlistment  or  reinstatement  is  denied,  the 
member's presence is not required to effect discharge unless a discharge Under Other 
than  Honorable  Conditions  is  contemplated.    The  applicant  received  an  honorable 
discharge  for  the  convenience  of  the  government  and  therefore  his  discharge  was  in 
accordance with the regulation.  Article 12.B.5.c. (reenlistment boards) of the Personnel 
Manual grants reenlistment boards to members with eight years of service who are not 
recommended for reenlistment.  However, Article 7.A.21. defines the rights of members 
on appellate leave, and it does not grant the right to enlistment or separation boards for 
such  members,  unless  the  Coast  Guard  is  contemplating  discharging  them  with  an 
Other than Honorable Discharge, which is not the applicant's situation.  

 
12.  In his last submission to the Board, the applicant argued that retirement is 
fair  and  just  in  his  case  because  under  Lawrence  v.  Texas,  123  S.  Ct.  2472  (2003),  the 
offense of which he was convicted, attempted consensual sodomy, is not misconduct.  
In Lawrence, two adult men were convicted of engaging in consensual  sodomy.  The 
Supreme  Court  found  that  the  "right  to  Liberty  under  the  Due  Process  Clause  gave 
them the full right to engage in their conduct without intervention of the government.  
It  is  a  promise  of  the  Constitution  that  there  is  a  realm  of  personal  liberty  which  the 
government  may  not  enter."  Id.    The  Court  further  found  that  the  Texas  law 
criminalizing sodomy between consenting adults of the same sex served no legitimate 
state interest.  

 
13.  The application of Lawrence v. Texas to the military is currently before the 
Court of Appeals for the Armed Forces (CAAF).  There are at least five cases pending 
before the CAAF dealing with this issue.  It would be premature and injudicious for the 
BCMR to determine that based on the Lawrence case, Article 125 of the Uniform Code 
of  Military  Justice  (UCMJ),  which  prohibits  sodomy  in  the  military,  consensual  or 

otherwise,  is  unconstitutional.    In  this  regard,  the  Board  notes  that  the  military  is  a 
unique organization with unique needs and that no determination has been made as to 
whether Article 125 furthers those needs.   Accordingly, the evidence is  insufficient to 
establish that Lawrence v. Texas is applicable to the military.  Even if Lawrence v. Texas 
is applicable to the military, the applicant has submitted no evidence to show that the 
Coast Guard would have reenlisted him. 
 

14.  Contrary to the applicant's request, the Board will not change the reason for 
his discharge from miscellaneous/general reasons to discharge by reason of expiration 
of  enlistment.    According  to  the  Separation  Program  Designator  (SPD)  Handbook,  a 
separation for miscellaneous/general reasons is applicable when a "Service component 
does  not  have  a  Service  reporting  requirement  for  specific  reasons  and  desires  to 
identify reasons collectively 'All other reasons' which qualify a member for separation." 
In  contrast,  the  SPD  Handbook  states  that  a  discharge  by  reason  of  completion  of 
required  active  service  means  that  a  member  is  discharged  upon  completion  of  his 
required  active  service.    As  discussed  above,  the  applicant  did  not  complete  his 
required active service because he spent more than half of his then six-year enlistment 
in an appellate leave status.  During this period he was away from the Coast Guard and 
performed  no  military  duties  or  training.    To  correct  his  DD  Form  214  to  say  that  he 
completed  his  required  active  service  would  not  be  an  accurate  description  of  the 
circumstances under which he was discharged.  Therefore, the Board will not direct a 
change to the reason for the applicant's discharge.  

 
15.      Nor  will  the  Board  upgrade  the  applicant's  RE-4  (not  eligible  for 
reenlistment) reenlistment code to an RE-1 (eligible for reenlistment) reenlistment code.  
The SPD Handbook authorizes either an RE-1 or RE-4 reenlistment code for a discharge 
for  general/miscellaneous  reasons.    The  Commandant  determined  that  an  RE-4  was 
appropriate in the applicant's case.  The applicant's conviction for attempted consensual 
sodomy,  with  a  subordinate  E-4  in  his  chain  of  command,  was  a  sufficient  basis  for 
assigning the RE-4 reenlistment code.  

 
16.  The applicant also challenged July 2, 1997 as the date of his discharge from 
active duty.  Article 1.E. of COMDTINST M1900.4D (Certificate of Release or Discharge 
from Active Duty, DD Form 214) states that the effective date of release/discharge shall 
be  entered  in  block  12.d  of  the  DD  Form  214.    The  date  prior  to  the  applicant's 
placement on appellate leave was the effective date of his release/discharge from active 
duty.  Article 7.A.21.i.3 of the Personnel Manual required the applicant's commanding 
officer  to  complete  a  DD  Form  214  to  the  extent  possible  prior  to  the  applicant's 
departure on appellate leave, which was July 3, 1997.  It also required that the applicant 
sign  the  DD  Form  214.    This  action  for  all  intents  and  purposes  terminated  the 
relationship between the applicant and the Coast Guard.  To include the approximately 
four years that the applicant spent on appellate leave in block 12.d. of the DD Form 214 
would have the appearance of crediting him with time on active duty that he did not 

serve.  The Board finds no error or injustice with the applicant's DD Form 214 showing 
his separation date from active duty as July 2, 1997.    
 
17.  The applicant asked that all records of any nature pertaining to charges for 
 
which  he  was  acquitted  be  removed  from  his  record.    The  Headquarters'  record 
contains  no  evidence  of  the  charges  and  specifications  for  which  the  applicant  was 
acquitted.  
 
 
case and his request for relief should be denied.  

18.    Accordingly,  the  applicant  has  not  established  an  error  or  injustice  in  this 

 

ORDER 

The application formerXXXXXXXXXXXXXXXXXX, USCG for the correction of his 

 
 

 
 

 
 
 
 
                                                             
 

 
 

 
 

 

 

 

 

 

 Jordan S. Fried 

 

 
 
military record is denied.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

   

 
 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 

 
 J. Carter Robertson 

 

 

 
 Kathryn Sinniger