DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2004-116 
 
XXXXXXXXXXXXXX 
xxxxxxxxxxxxxx 
   

 

 
 

FINAL DECISION 

 
Author:  Hale, D. 
 
 
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 May 13, 2004, upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  February  24,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

The applicant asked the Board to correct his record by upgrading his separation 
code (JML), narrative reason for separation (homosexuality), and reenlistment code (RE-
4).1    The  applicant  did  not  specify  which  separation  code,  narrative  reason,  or 
reenlistment code he wanted placed in his Coast Guard record.  The applicant argued 
that  the  codes  should  be  upgraded  because  he  is  not  a  homosexual,  nor  was  he  a 
homosexual at the time of his discharge, and that he did not discover the meaning of 
the  separation  and  reenlistment  codes  until  he  recently  attempted  to  reenlist  in  the 
Armed Forces.  
 

SUMMARY OF THE APPLICANT’S RECORD 

 
 
On February 5, 1980, the applicant enlisted in the Coast Guard.  On May 6, 1987, 
the  applicant  sent  a  memorandum  to  the  Commanding  Officer  (CO)  of  his  unit, 
requesting an administrative discharge from the Coast Guard while citing provisions of 
                                                 
1 A reenlistment code of RE-4 means the applicant is “ineligible for reenlistment” into the Armed Forces. 

 
 

 
 
 
 

I have never, and will never attempt, or engage in a homosexual act.  I also 
will  not  prejudice  myself  against  homosexuals,  or  any  other  group  of 
individuals, for any reason. 

The applicant’s CO responded in a letter dated May 7, 1987, stating that 

I am holding action on your request for an administrative discharge pending 
the results of the official investigation now in progress.  As you are aware, 
the  investigation  may  raise  other,  non-sexual  related,  issues  that  could 
require further action. [2] 

the  Coast  Guard  Personnel  Manual  pertaining  to  discharges  for  homosexual  conduct.  
In his memorandum to the CO, the applicant stated the following: 
 
 

I am not a homosexual, but I do ‘habitually associate myself with persons 
known to be homosexuals.’  In accordance with [Article 12.B.33.a.(6)(c)1 
of  the  Personnel  Manual],  this  means  that  I  am  classified  as  a  class  III 
homosexual, to be discharged for unsuitability. 

 
 
On July 29, 1987, the applicant’s Acting CO issued a letter informing the 
applicant  that  he  was being  discharged  from  the  Coast  Guard  for  unsuitability 
pursuant  to  Article  12.B.16.b.6.    In  his  letter,  the  CO  noted  that  he  decided  to 
discharge the applicant because of the applicant’s admission in his May 6, 1987, 
letter that he was a Class III homosexual.   The CO noted that the final decision 
on  his  discharge  and  the  type  of  discharge  would  rest  with  the  Commandant.  
The letter also informed the applicant that he had the right to submit a rebuttal 
and to consult with legal counsel. 
 
 
On July 29, 1987, the applicant submitted a response to the CO’s July 29, 
1987, letter.  In his letter, the applicant acknowledged that his discharge had been 
proposed  and  acknowledged  that  he  had  been  provided  the  opportunity  to 
consult legal counsel.  Finally, he noted that he did not object to being discharged 
from the Coast Guard.  The applicant attached a statement to the July 29 letter, 
and noted, in pertinent part, that 
 
 
 
 

… I am not homosexual or bisexual. 

I  have  friends  that  are  openly  homosexual.  …    I  associate  with  these 
people  primarily  because  I  am  on  the  Resurrection  and  Prayer  (RAP) 
ministry  team  at  my  church.    As  a  RAP  team  member,  I  visit  AIDS 
patients in hospitals and in their homes.  I have, on occasion, escorted a 

                                                 
2 The applicant was determined to have unlawfully collected rent-plus allowances over his actual costs 
over  a  5-month  period  in  1983  and  1984.    He  made  restitution  of  $960.00  to  the  government,  and  no 
command action was taken. 

partially debilitated patient out to various bars and dance clubs. …  I am 
therefore  guilty  of  ‘habitually  associating  with  persons  known  to  be 
homosexual.’ … 

The Coast Guard personnel manual dictates that my behavior means that I 
am a Class III homosexual. …  It appears that the Coast Guard would have 
their personnel prejudice themselves against homosexuals. …  [I] can not 
and  will  not  knowingly  prejudice  myself  against  homosexuals  for  any 
reason whatsoever. … 

…  I  feel  strongly  enough  about  this  matter  that  I  would  rather  be 
discharged, than be affiliated with an organization that condemns a group 
of individuals… . 

Again, although I do not object to this discharge, I am not a homosexual, 
and I have never engaged in, nor attempted to engage in, any homosexual 
acts. 

 
 

 
 

 
 

 

On  July  30,  1987,  the  applicant  was  evaluated  by  a  physician  who  noted  that 
there was no evidence to support a clinical finding or psychiatric diagnosis and that no 
further assessment or psychological testing was necessary. 

 
On July 31, 1987, the applicant’s CO issued a memorandum to the Commandant 
recommending  that  the  applicant  be  administratively  discharged  by  reason  of 
unsuitability in accordance with Article 12.B.16. of the Personnel Manual.  In support of 
his recommendation, he noted that the applicant had openly admitted to being a Class 
III homosexual and that his discharge was warranted under the applicable regulations. 

 
On August 7, 1987, the Commandant directed that the applicant be discharged 
by reason of unsuitability in accordance with Article 12.B.6. of the Personnel Manual.  
The  authorized  separation  code  and  narrative  reason  for  separation  were  JML 
(homosexuality) and unsuitability. 

 
On  August  17,  1987,  the  applicant  signed  an  administrative  remarks  (page  7), 
acknowledging that his security clearance would be terminated and made the following 
acknowledgment: 

 
I  acknowledge  termination  for  cause  of  my  security  clearance  and  that  unless 
eligibility for a security clearance is subsequently reinstated, I will not be eligible 
for reenlistment except as authorized by the Commandant. 
 
On September 10, 1987, the applicant was honorably discharged from the Coast 
Guard for unsuitability with a reenlistment code of RE-4.  On this date he signed a page 
7 in which he made the following acknowledgment: 

 

I acknowledge that I have been informed that I am not being recommended for 
reenlistment  and  the  reason  [thereof],  and  that  an  entry  to  that  effect  has  been 
made in my service record. … 

 

VIEWS OF THE COAST GUARD 

 
 
On  August  17,  2004,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  in  which  he  adopted  the  findings  of  the  Coast  Guard 
Personnel  Command  (CGPC)  and  recommended  that  the  Board  grant  the  applicant’s 
request.    In  its  memorandum  to  the  JAG,  CGPC  recommended  that  the  applicant’s 
DD214  should  be  corrected  by  (a)  changing  his  separation  program  designator  (SPD) 
code  from  JML  to  JDP3;  (b)  changing  the  narrative  reason  for  separation  from 
unsuitability  to  separation  for  miscellaneous/general  reasons,  and;  (c)  changing  his 
reenlistment  code  from  RE-4  (ineligible  for  reenlistment)  to  RE-1  (eligible  for 
reenlistment). 
 
 
JAG stated that when considering the applicant’s case under the Equity Standard 
of Review set forth in 33 C.F.R. Chapter 1 § 51.7, it is clear that the policies governing 
discharge for homosexuality have changed substantially since the applicant’s discharge.  
Accordingly,  JAG  noted  that  under  current  policy  the  applicant  would  not  be 
prohibited from remaining or enlisting in the service because he was not a homosexual 
nor had he ever engaged in a homosexual act.   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On August 18, 2004, the Chair sent a copy of the views of the Coast Guard to the 

 
 
applicant and invited him to respond within 30 days.  No response was received. 
 

APPLICABLE LAW 

 
Article  12.B.16.b.6.  of  the  Coast  Guard  Personnel  Manual  (at  the  time  of  the 
 
applicant’s discharge), stated that when an enlisted person was determined to be Class 
III homosexual, discharge was authorized under this article by reason of unsuitability. 
 
 
homosexuals were defined as those cases where the enlisted member: 
 

Article 12.B.33.a.6. (at the time of the applicant’s discharge) stated that Class III 

a. 
Exhibits,  professes  or  admits  to  homosexual  tendencies,  or  habitually 
associates with persons known to be homosexuals, but there is no evidence that 
the  member  has,  while  on  active  duty  in  the  Coast  Guard,  engaged  in 

                                                 
3  Upon inquiry by the BCMR staff, the Coast Guard stated that the proposed JDP code was erroneous, as 
it does not exist in the SPD handbook.  

homosexual  acts,  or  has  proposed  or  attempted  to  perform  an  act  of 
homosexuality. 

 

Prior  to  entering  the  Coast  Guard,  exhibited,  professed,  or  admitted  to 
b. 
homosexual  tendencies,  or  habitually  associated  with  persons  known  to  be 
homosexuals, or who engaged in one or more homosexual acts or proposed or 
attempted to perform an act of homosexuality, but there is no evidence that the 
member has, while on active duty in the Coast Guard, engaged in or proposed or 
attempted to perform an act of homosexuality. 

 
 
Article  12.B.33.a.7.  (at  the  time  of  the  applicant’s  discharge)  stated  that  when 
processing  service  members  classified  as  Class  III  homosexuals,  commanding  officers 
were directed to take one of the following actions: 
 

Recommend  retention 

a. 
to 
Commandant (G-PE) for final action where it is deemed that the evidence fails to 
support the allegation against the member or the circumstances of the case fully 
justify such a recommendation. 

the  case 

in 

the  Service  and 

forward 

 

b. 
Advise the member concerned of the basis for classification as a Class III 
homosexual,  the  contemplated  actions  to  be  taken,  and  inform  the  member,  in 
writing,  of  the  right  to  counsel,  and,  if  the  member  has  8  years  of  total  active 
and/or inactive military service, of the right to appear before a board. 

 
 
Commandant  Instruction  M1900.4C  (at  the  time  of  the  applicant’s  discharge) 
stated that a member receiving a separation code of JML received a narrative reason for 
separation of Unsuitability – Homosexual tendencies and a reenlistment code of RE-4. 
 
 
Article 12.E.1. of the current Coast Guard Personnel Manual states, in pertinent 
part,  that  under  the  current  “Don’t  ask,  don’t  tell”  policy  of  the  armed  services,  the 
suitability of a person will be judged on their conduct and ability to meet the required 
standards  of  duty  performance  and  discipline.    A  member’s  sexual  orientation  is 
considered  a  personal,  private  matter  and  is  not  a  bar  to  continued  service  unless 
manifested  by  homosexual  conduct.    The  Personnel  Manual  further  states  that  a 
member  may  only  be  separated  if  credible  information  about  homosexual  conduct 
exists.  Credible information does not exist if the only information known concerns an 
associational  activity,  such  as,  going  to  a  gay  bar,  possessing  or  reading  homosexual 
publications, associating with known homosexuals, or marching in a gay rights rally in 
civilian clothes.   
 
33 C.F.R. Chapter 1 § 51.7, Equity Standard of Review.  A discharge is presumed 
 
to be equitable unless an applicant submits  evidence sufficient to establish that “[t]he 
policies  and  procedures  under  which  the  applicant  was  discharged  differ  in  material 

respects  from  policies  and  procedures  currently  applicable  on  a  service-wide  basis  to 
discharges  of  that  type,  provided  that  current  policies  or  procedures  represent  a 
substantial enhancement of the rights afforded a party in such proceedings, and there is 
a  substantial  doubt  that  the  applicant  would  have  received  the  same  discharge  if 
relevant current policies and procedures had been available to the applicant at the time 
of the discharge proceeding under consideration…” 
 

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 submission, and appli-
cable law: 
 
1. 
 
§ 1552.    
 

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

2. 

An  application  to  the  Board  must  be  filed  within  3  years  after  the 
applicant  discovers  the  alleged  error  in  his  record.    10  U.S.C.  §  1552.    The  applicant 
signed  and  received  his  discharge  documents  indicating  that  his  separation  code  was 
JML and his reenlistment code was RE-4 when he signed his Certificate of Release From 
Active  Duty  (DD214)  in  1987,  but  alleged  that  he  did  not  realize  what  the  separation 
and  reenlistment  codes  meant  until  he  recently  attempted  to  reenlist  in  the  Armed 
Forces.  However, the Board finds that the applicant knew or should have known the 
meaning of the separation and reenlistment codes when he signed his DD214.  Also, the 
applicant received letters from his CO and the Commandant in July and August 1987, 
which  clearly  stated  he  was  being  discharged  for  being  a  Class  III  homosexual.  
Moreover,  the  applicant  signed  two  additional  documents  that  clearly  stated  he  was 
ineligible for reenlistment.  Thus, his application was untimely. 

 
3. 

Pursuant  to  10  U.S.C. §  1552,  the  Board  may  waive  the  3-year  statute  of 
limitations if it is in the interest of justice to do so.  To determine whether it is in the 
interest  of  justice  to  waive  the  statute  of  limitations,  the  Board  should  consider  the 
reason  for the  delay  and  conduct  a  cursory review  of  the  merits of  the  case.    Allen  v. 
Card, 799 F. Supp. 158, 164 (D.D.C. 1992).  Although the applicant has not explained his 
delay, a cursory review of the merits of this case indicates that the JAG and CGPC have 
determined  that  the  applicant’s  separation  and  reenlistment  codes  were  unjust.  
Therefore,  the  Board  finds  that  it  is  in  the  interest  of  justice  to  waive  the  statute  of 
limitations in this case. 
 
 
At  the  time  of  the  applicant’s  discharge  in  1987,  the  Coast  Guard  had 
delineated  three  categories  of  homosexuality.    One  of  these  categories  (Class  III)  was 
reserved  for  individuals  for  whom  "there  is  no  evidence"  that  they  engaged  in  or 
proposed or attempted to perform an act of homosexuality "while on active duty in the 

4. 

5. 

Coast Guard."  Another category (Class II) was for persons who have engaged in "one 
or  more  homosexual  acts"  while  on  active  duty  in  the  Coast  Guard.  (The  phrase 
"homosexual acts" was not defined in the Personnel Manual.)  
 
 
The Board notes that the Coast Guard’s decision to discharge the applicant 
was not an arbitrary one.  In the applicant’s May 6, 1987, letter to his CO, the applicant 
specifically requested a discharge from the Coast Guard.  Citing Article 12.B.33.a. of the 
Personnel  Manual,  the  applicant  stated  that  discharge  was  warranted  because  he 
“habitually  associates  …  with  persons  known  to  be  homosexuals”  and  “…this  means 
that I am classified as a class III homosexual, to be discharged for unsuitability.”  In that 
same letter, the applicant reinforced that he was not a homosexual nor would he ever 
engage in any homosexual act.  Nonetheless, the applicant actively sought a discharge 
by explicitly stating that he was a class III homosexual.  The Coast Guard subsequently 
initiated  action  to  discharge  him  administratively  for  unsuitability,  and  he  was 
discharged shortly thereafter. 
 
 
 
The Board finds that the Coast Guard committed no error at the time of 
the  applicant’s  discharge  in  1987.    The  applicant  openly  claimed  to  be  a  class  III 
homosexual  and  clearly  expressed  his  desire  to  be  discharged  from  the  Coast  Guard 
under  Article  12.B.16.b.6.  that  made  class  III  homosexuality  grounds  for  discharge.  
Although  the  Coast  Guard  was  under  no  duty  to  grant  the  applicant’s  request,  they 
nonetheless did so and discharged him for unsuitability.  The Coast Guard informed the 
applicant  by  written  notice  on  several  occasions  that  he  was  being  discharged  for 
unsuitability  and  that  he  would  be  ineligible  for  reenlistment.    The  Coast  Guard  also 
afforded  the  applicant  several  opportunities  to  seek  legal  counsel,  but  the  applicant 
chose not to do so. 

  
6. 

 

 
7. 

The  JAG  and  CGPC  stated,  and  the  Board  agrees,  that  the  policies  and 
procedures  under  which  the  applicant  was  discharged  differ  substantially  from  the 
current  policies  and  procedures  applicable  to  matters  of  this  nature.    Under  current 
Coast Guard policy, a member may not be discharged for an associational activity, such 
as,  going  to  a  gay  bar,  possessing  or  reading  homosexual  publications,  or  associating 
with  known  homosexuals.    Under  Article  12.E.1.  of  the  current  Personnel  Manual,  a 
member  may  only  be  discharged  for  homosexuality  based  on  viable  evidence  of  a 
homosexual  act,  a  statement  that  demonstrates  a  propensity  or  intent  to  engage  in 
homosexual  acts,  or  a  homosexual  marriage  or  attempted  marriage.    In  this  case,  the 
Board agrees with the JAG and CGPC that under current policy, the applicant would 
not  be  prohibited  from  remaining  or  enlisting  in  the  Service  because  there  is  no 
evidence  whatsoever  that  the  applicant  is  a  homosexual  or  has  demonstrated  a 
propensity or intent to engage in homosexual acts. 

 
8. 

After careful review of the applicant’s case, both the JAG and CGPC have 
concluded that the applicant is entitled to relief because the separation code, narrative 

reason  for  separation,  and  reenlistment  code  are  unjust  in  light  of  the  Coast  Guard’s 
current policies.  The Board agrees.  Under the current “Don’t ask, don’t tell” policy of 
the armed services, the suitability of a person is judged on his or her conduct and ability 
to meet the required standards of duty performance and discipline.  A member’s sexual 
orientation and associations is considered a personal, private matter and are not a per se 
bar to continued service.   

 
9. 

The Coast Guard recommended that the applicant’s narrative reason for 
separation be recorded as “miscellaneous/general.”  The corresponding SPD codes are 
JND for involuntary separation or KND for voluntary separation.  Because the record 
indicates  that  the  applicant  actively  pursued  his  discharge,  the  Board  finds  that  his 
separation code should be KND. 

 
 
 

 
10.  Accordingly, the applicant’s request should be granted.  

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

a. 

b. 

c. 

Separation Code:  KND 

Narrative Reason:  Separation for Miscellaneous/General Reasons 

 
 
The  application  of  former  XXXXXXXXXXXXXXXXXXXX,  USCG,  for  the 
correction of his military record is granted.  The applicant’s DD 214 shall be corrected as 
follows: 
 
 
 
 
 
 
 
 
 
 
above corrections, rather than by issuing him a DD 215. 
 
 
 

The Coast Guard shall make these corrections by issuing a new DD 214 with the 

Reenlistment Code: RE-1  

Authority: 12.B.12. 

d. 

 

 
 Harold C. Davis, MD  

 

 

 

 
 
 Audrey Roh  

 

 

 
 
 Marc J. Weinberger