DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-083 
 
xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxx  
   

 

 
 

FINAL DECISION 

 
Author:  Ulmer, D. 
 
 
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 March 18, 2004, upon receipt of the applicant’s completed application and 
military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  December  16,  2004,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 The  applicant  asked  the  Board  to  correct  his  military  record  by  upgrading  his 

 
 
1960 Undesirable Discharge.  He did not indicate the type of discharge he wanted. 
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant requested an upgrade of his  discharge as a matter clemency.  He 
recognized the seriousness of his conduct while in the military, but stated that he has 
led a productive life since his discharge. He submitted several letters from individuals 
attesting to his post-service good behavior and accomplishments.   
 

SUMMARY OF THE RECORD  

 

On  September  2,  1959,  the  applicant  enlisted  in  the  Coast  Guard  and  was 

 
discharged on September16, 1960. 
 
On  February  17,  1960,  the  applicant  was  taken  to  captain's  mast  (non-judicial 
 
punishment)  under  Article  15  of  the  Uniform  Code  of  Military  Justice  (UCMJ)  for 
violations  of  Article  86  (unauthorized  absence)  and  Article  87  (missing  ship's 
movement).  He was punished with two weeks of extra duty.  
 
 
On  April  18,  1960,  the  applicant  was  taken  to  captain's  mast  for  violations  of 
Article  86  (unauthorized  absence  for  17  1/2/  hours)  and  Article  92  (disobeying  an 
order) of the UCMJ.  He was punished with two weeks of restriction. 
 
 
On  May  10,  1960,  the  applicant  was  taken  to  captain's  mast  for  a  violation  of 
Article 117 (provoking speech and gestures) of the UCMJ.  He was punished with three 
days of confinement on bread and water. 
 
 
On  May  21  &  23,  1960,  the  applicant  was  tried  by  a  special  court-martial  for 
several  violations  of  Article  92,  Article  127  (communicating  threats),  Article  121 
(larceny)  and  Article  134  (miscellaneous  offenses).    He  was  convicted  of  at  least  one 
specification of each charge.  He was sentenced to a reduction in rate to pay grade E-1, 
forfeiture of $60.80 per month for four months, and confinement at hard labor for four 
months.    
 
On  June  8,  1960,  the  applicant  was  admitted  to  a  hospital  for  a  psychiatric 
 
examination because the Coast Guard intended to discharge him from the Service with 
an Undesirable Discharge.    
 
 
On June 14, 1960, the Commandant referencing a May 31, 1960, letter from the 
applicant's commanding officer (CO), ordered the applicant to be discharged by reason 
of  unfitness  after  he  completed  his  term  of  confinement.    The  Commandant  also 
ordered  that  code  28B  (repeated  military  offenses  including  those  resulting  in  courts-
martial)  be  shown  as  the  reason  for  discharge  in  item  11c  (reason  and  authority  for 
discharge) on the applicant's DD Form 214, in accordance with Personnel Instruction N. 
77-56.  In the reference line of this letter, the Commandant indicated that the CO's May 
31, 1960 letter with enclosures was "confidential [and] obscene."  A memorandum from 
the Enlisted Personnel Separation and Advancement Division dated June 14, 1960 was 
stapled to a copy of the Commandant's letter, and it stated in fact that papers related to 
the applicant had been "processed and transferred for file to the Intelligence Division."   
 

 

On June 17, 1960, a Board Medical of Survey (BMS) made the following pertinent 

finding about the applicant's health: 
 

1.  [The applicant] is unable to perform the duties of his rating by reason 
of . . . Character Disorder, antisocial type. 

The BMS reported that the applicant's  condition existed prior to his enlistment 

 
 
and was not aggravated by his service.  The BMS recommended the following: 
 

(1) That the  [applicant] be  separated from the USCG in accordance with 
the provisions set forth under Article 12-B-6(g) USCG Personnel Manual.1   
 
(2) That any charges pending against the [patient] be dropped, as further 
disciplinary  measures  would  neither  benefit  the  patient  nor  the  Coast 
Guard. 

 
On June 21, 1960, the applicant signed a "Certificate Relative to a Full and Fair 
 
Hearing"  in  which  he  waived  further  processing  under  the  Physical  Disability 
Evaluation System.  He stated as follows, in relevant part:  

 
[W]ith  full  knowledge  of  the  recommendations  of  the  Board  of  Medical 
Survey convened in my case and with full knowledge of my rights in this 
matter[,] I hereby certify that I do not demand a hearing before a physical 
evaluation  board  and request  that  I  be  separated  from  the United  States 
Coast Guard as soon as possible. 

 

 
On  June  29,  1960,  the  Commander,  Third  Coast  Guard  District,  forwarded  the 
 
BMS  to  the  Commandant  and  recommended  that  after  completing  his  sentence  of 
confinement, the applicant be discharged with an Undesirable Discharge by reason of 
unfitness.   
 
 
On  July  7,  1960,  the  commandant  approved  the  applicant's  discharge  upon 
completion of his period of confinement and directed that Code 28B be placed on line 
11c of the DD Form 214.     
 
 
Prior to the completion of his confinement, the applicant wrote an undated letter 
to  the  Commander,  Third  Coast  Guard  District,  in  which  he  stated  that  he  had  been 
informed  that  upon  his  release  from  confinement,  he  would  be  discharged  from  the 
Coast  Guard  with  an  undesirable  discharge.    The  applicant  stated  that  prior  to  being 
confined  he  was  under  the  impression  that  he  would  be  given  a  General  Discharge 
Under  Honorable  Conditions.    He  stated  that  had  he  known  he  would  receive  an 

                                                 
1   The earliest version of the  Personnel Manual available to the Board does not contain a 12-B-6(g), but it 
does  contain  a  12-B-16(g)  which  authorizes  a  discharge  by  reason  of  unsuitability  for  personality 
disorders. 
 

Undesirable Discharge, he would have requested legal assistance and a hearing before 
an administrative discharge board (ADB).  He further stated the following:  
 

Since I did not appear before a board of officers, I must have waived my 
rights.  I never remembered being afforded an opportunity to do this.  I 
did  sign  a  paper  on  board  the  cutter  in  the  presence  of  the  Executive 
Officer [XO] , , , which I now believe to be  waiver of my rights.  When I 
signed this paper I was told it was for an administrative discharge with no 
mention of an Undesirable Discharge being made.  In view of this I believe 
I would be getting a General Discharge Under Honorable Conditions. 

 
 
On September 6, 1960, the applicant's CO wrote to the Commander, Third Coast 
Guard District in response to the applicant's undated letter.  The CO stated that the XO 
delivered  a  letter  to  the  applicant  advising  him  of  his  rights  with  respect  to  his 
proposed  Undesirable  Discharge.    The  CO  stated  that  his  XO  advised  him  that  the 
applicant had signed a letter waiving his right to an ADB.  The CO attached a signed 
statement from the XO who stated in pertinent part: 
 

for 

the  recommendation 

On May 31, 1960, I personally served a copy of [the CO's] letter dated 31 
May  1960,  recommending  [the  applicant]  for  a  discharge  as  undesirable 
from  service  in  the  United  States  Coast  Guard.    This  letter  detailed  the 
basis  of 
[the  applicant's]  discharge  as 
undesirable.  He read the letter carefully making several comments upon 
its content.  He took particular exception to the information contained in 
paragraph  4  of  this  letter,  which  in  essence  alleged  [his]  propensity 
toward homosexuality. [The applicant] stated that he wanted more time to 
review the contents of the CO's letter . . . 
 
The  following  day  I  inquired  of  [the  applicant]  whether  he  desired  to 
reply, which was within his rights to make.  I informed him that the letter 
as  written  by  the  [CO]  was  going  to  be  submitted  whether  he  made  a 
reply or not.  [The applicant] expressed his opinion [in] a reply, which I 
assisted  him  to  draft.    His  typed  reply  was  submitted  to  him  on  1  June 
1960, at which time he carefully read [it], stating that that was exactly his 
feeling  on  the  matter,  adding  that  he  wanted  out  of  the  Coast  Guard  as 
soon as possible.  He signed the letter, which was enclosed with the [CO's] 
letter of 31 May 1960 recommending his discharge as undesirable.2   
 

                                                 
2  Neither the CO's letter informing the applicant of his rights, nor the applicant's waiver of his right to a 
hearing before an administrative discharge board is in the military record.  These documents appear to 
have been transferred to a confidential file per the Commandant's June 14, 1960 letter. 
 

There is no doubt that he fully understood that the recommendation was 
his discharge as undesirable, not under honorable conditions.   

 
In a letter dated September 7, 1960, the Commander, Third Coast Guard District, 
 
informed the applicant that he had determined based on consultation with the CO, that 
none of the applicant's rights had been violated and that he would be discharged with 
an Undesirable Discharge.    
 
 
On September 16, 1960, the applicant was discharged from the Coast Guard with 
an  Other  Than  Honorable  Discharge  (Undesirable  Discharge).    On  the  date  of  his 
discharge,  the  applicant's  performance  marks  page  shows  that  he  had  earned  an 
average overall mark of 0 in proficiency and an average overall mark of 1.33 in conduct.    
 

VIEWS OF THE COAST GUARD 

 
 
On  July  20,  2004,  the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request because it is untimely or for lack of proof.  
 
 
With respect to untimeliness, TJAG stated that an application for correction of a 
military record must be filed within three years after the alleged error or injustice was 
discovered or should have been discovered, unless the delay is excused in the interest of 
justice.  He stated that the applicant filed his application more than 40 years after the 
statute of limitations had expired.   
 

TJAG stated that it is not in the interest of justice to excuse the untimely filing.  In 
this regard, TJAG stated that the BCMR's regulations require that an applicant filing an 
untimely request set forth reasons explaining why it is in the interest of justice for the 
BCMR to accept his application for correction.  In making a determination whether to 
waive the statute of limitations, the Board must consider the reasons for the delay and 
make  a  cursory  review  of  the  potential  merits  of  the  claim.    Dickson  v.  Secretary  of 
Defense,  68  F.3d  1396  (D.C.  Cir  1995).    TJAG  argued  that  the  applicant  offered  no 
justification  for  not  filing  his  application  sooner  and  did  not  alleged  that  the  Coast 
Guard committed a specific error or injustice by discharging him with an Other Than 
Honorable  Discharge.    "In  sum,  Applicant  offers  no  substantive  reason  for  his  forty-
three year delay in taking action, and [he] lacks any reasonable chance of prevailing on 
the merits [of his application].  It is not in the interest of justice to waive the statutory 
three-year filing deadline in this case." 

 
TJAG  attached  a  memorandum  from  the  Commander,  Coast  Guard  Personnel 
Command (GGPC) to the advisory opinion, stating that he adopted its fact and analysis.  
CGPC offered the following conclusions: 

 

The  applicant  alleges  no  error  in  the  proceedings  that  led  to  his 
separation,  and  I  find  no  evidence  of  error  or  injustice  in  the  record  to 
recommend approval of the Applicant's request.  The underlying reason 
for the Applicant's discharge was unfitness due to his character disorder, 
and  the  characterization  of  his  discharge  was  based  on  his  record  of 
misconduct,  which  warranted  an  undesirable  discharge  (or  "under  other 
than  honorable  conditions'). 
  While  the  record  contains  a  minor 
discrepancy  in  stating  that  the  Applicant  was  discharge  "by  reason  of 
Special  Court  Martial"  .  .  .  the  Applicant's  remaining  record  accurately 
states  that  the  applicant  shall  be  discharged  "with  an  undesirable 
discharge  by  reason  of  unfitness.    While  the  record  indicates  that  the 
applicant  alleged  at  the  time  of  his  discharge  that  he  was  unjustly 
deprived  of  his  right  to  a  discharge  board  hearing,  I  believe  the  record 
refutes this allegation and am  satisfied that [the] applicant was afforded 
full  due  process  during  the  disciplinary  and  separation  processes  he 
underwent, and that he did not suffer an injustice.   

 

[T]he  applicant  requests  relief  on  the  basis  of  "common  decency."    In 
support of his request, he provides ample evidence of his good citizenship 
subsequent  to  his  discharge.    However,  the  Applicant's  Undesirable 
discharge was and is appropriate, and accurately reflects the character of 
the  Applicant's  period  of  service  with  the  Coast  Guard.    The  Applicant 
engaged in serious infractions that would very likely result in a discharge 
with the same characterization today.  The Coast Guard has no policy, nor 
is it contemplating a policy, to upgrade the discharge of members based 
solely on their subsequent good behavior in civilian life.  Persons earn a 
variety of veteran's benefits based on their honorable service, and to the 
extent these benefits to persons who did not earn them would be unsound 
policy.  While the Coast Guard cannot support the applicant's request, we 
are glade that he has been able to improve his life since he left the service.   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On August 17, 2004, the BCMR received the applicant's response to the views of 
 
the Coast Guard.  He stated that he was immature when he entered the Coast Guard 
and that he made some bad choices.  He alleged that while in confinement, he asked 
that his case be reviewed and was told that nothing could be done.  Therefore, he was 
denied a basic right.  He stated that he was not aware of the statute of limitations and 
believed the decision with respect to his discharge was forever until his wife began to 
investigate the matter.  He stated that he would like to clear and restore honor to his 
name for his children and grandchildren.   
 

 
The  applicant  asserted  that  the  Coast  Guard  admitted  that  he  was  not  given  a 
hearing  by  the  discharge  board  and  that  the  statement  he  signed  waiving  his  rights 
cannot be located.  He further asserted that he was stunned to find out that the Coast 
Guard  diagnosed  him  as  having  an  anti-social  character  disorder.    He  stated  that  the 
Coast Guard issued him a Mariners document in 1967.  He asked to be enlightened on 
the official diagnosis.  He further stated the following: 
 

At  this  time,  I  certainly  understand  the  USCG's  position  on  this  matter, 
due to current events I would sincerely like to ask if you would consider 
letting  me  finish  out  my  original  contract    .  .  .  by  serving  in  the 
construction  field  of  military  service.    I  would  prefer  the  electrical  part 
since that is what I'm trained for.  I'm 63 years old and in excellent health.  
I would be honored to serve.   

 

APPLICABLE LAW 

 
Personnel Manual (CG-207) Effective November 27, 19673 
 
 
Article  12-B-1  of  this  version  of  the  Personnel  Manual  lists  three  types  of 
administrative  discharges.    They  are  Honorable  Discharge,  General  Discharge,  and 
Undesirable  Discharge.    Article  12-B-2(14)  defines  an  Undesirable  Discharge  as  a 
discharge  under  other  than  honorable  conditions  for  one  or  more  of  eleven  reasons, 
including  unfitness.    A  subcategory  of  unfitness  is  "frequent  involvement  of  a 
discreditable nature with civil or military authorities."  See Articles 12-B-4. 
 

Article 12-B-12(b) states that an enlisted person may be considered for discharge 
by  reason  of  unfitness  to  rid  the  Service  of  an  individual  whose  military  record  is 
characterized by "Frequent involvement of a discreditable nature with civil or military 
authorities."   
 
Article  12-B-14  of  the  Personnel  Manual  then  in  effect  required  that  a  member 
 
being  processed  for  discharge  with  an  Undesirable  Discharge  be  notified  of  the 
proposed  discharge, the  basis  for  the  discharge,  and the right to present  his  case  and 
appear in person before an ADB with counsel.   The member was also to be advised that 
he could waive these rights.    
 

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: 

                                                 
3   This is the earliest  version of the Personnel Manual available to the Board. 

 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.   
 

2. 

The applicant requested an oral hearing before the Board.  The Chairman, 
acting pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition 
of the case without a hearing.  The Board concurs in that recommendation. 

 
 
3. The application was not timely.   To be timely, an application for correction of 
a  military  record  must  be  submitted  within  three  years  after  the  alleged  error  or 
injustice was discovered or should have been discovered.  See 33 CFR 52.22.   
 
 
4.  However, the Board may still consider an untimely application on the merits, 
if it is in the interest of justice to do so.  In deciding whether it is in the interest of justice 
to waive the statute of limitations, the Board should take into consideration the length 
and reason for the delay and the likelihood of the applicant's success on the merits.  See 
Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir 1995). 
 

5.  The applicant's application was submitted approximately 40 years beyond the 
statute of limitations.  The applicant did not provide the date on which he discovered 
the alleged error, but he should have discovered it on the date of his discharge in 1960.  
He  did  not  deny  that  he  was  aware  of  the  Undesirable  Discharge  at  the  time  of  his 
discharge. Further, the applicant's explanation for why it is in the interest of justice to 
waive the statute is not persuasive.  In this regard, the applicant asserted that it would 
be in the interest of justice for the Board to waive the statute and consider his untimely 
application based on common decency and the fact that he was not aware of the BCMR 
until recently. 
 

6.  Although, the Board is not persuaded by the applicant's reason for not filing 
his  application  sooner,  the  Board  must  also  consider  the  likelihood  of  the  applicant's 
success on the merits of his claim in deciding whether the statute of limitations should 
be waived.  Based on a cursory review of the evidence in this case, it is unlikely that the 
applicant will prevail on the merits of his claim. Discharging the applicant by reason of 
unfitness  due  to  repeated  involvement  with  military  authorities  was  an  appropriate 
basis on which to discharge the applicant with an Undesirable Discharge.  

 
Discharging the applicant with an Undesirable Discharge required that the Coast 
Guard advise him of his right to present his case to an ADB, as well as his right to waive 
the  ADB.    The  Board  notes  that  although  an  actual  statement  from  the  applicant 
waiving his right to an ADB is not in the service record, his CO and XO, in a letter to the 
Commander,  Third  Coast  Guard  District,  dated  September  7,  1960,  stated  that  the 
applicant was provided with an explanation of his due process rights with respect to 
the  Undesirable  Discharge  and  that  he  waived  those  rights.    The  CO's  and  XO's 

statements  written  contemporaneously  with  the  applicant's  discharge  are  sufficient  to 
persuade  the  Board  that  the  applicant  was  advised  of  and  waived  his  rights  with 
respect  his  discharge,  despite  the  applicant's  contention  to  the  contrary.    Moreover, 
contrary to the applicant's contention, nothing in the military record indicated that the 
applicant was ever considered for anything other than an Undesirable Discharge.   

 
7. The Board notes that during the applicant's administrative processing for an 
Undesirable  Discharge,  he  was  diagnosed  as  suffering  from  an  anti-social  personality 
disorder that could have been used as a basis for discharge, if the CO had chosen to do 
so.  However, the applicant engaged in a pattern of misconduct for the entire time he 
was on active duty.   He was punished at captain's masts on three different occasions 
and convicted by a special court-martial during his approximately nine months in the 
Coast Guard.  He performed his duties in a poor manner, receiving an overall 0 mark in 
proficiency and an overall 1.33 mark in conduct.  The applicant's pattern of misconduct 
and his poor performance marks justified the Coast Guard's decision to discharge him 
with  Undesirable  Discharge  due  to  unfitness  (repeated  involvement  with  military 
authorities).    

 
8.  With regard to the applicant's post-service behavior and accomplishments, the 
Secretary's  Delegate  directed  on  July  2,  1976  "that  the  Board  should  not  upgrade 
discharges solely on the basis of post-service conduct." 
 
 
 
9.  Therefore, based on the length of the delay, the lack of persuasive reasons for 
not acting sooner to correct his record, and the probable lack of success on the merits of 
his claim, the Board finds it is not in the interest of justice to waive the three-year statute 
of limitations in this case.  
 
 
 

10.  Accordingly, the applicant's request for relief should be denied. 

 

 
 

The application of former xxxxxxxxxxxx, 006 36 0633, USCG, for correction of his 

ORDER 

 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Donald A. Pedersen 

 

 

 
 J. Carter Robertson 

 

 

 
 Darren S. Wall