DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2004-171 
 
XXXXXXXXXXXXXXXXX 
xxxxxxxxxxxxxxxxx 
   

 

 
 

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 August 19, 2004, upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 

This  final  decision,  dated  May  5,  2005,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

The applicant asked the Board to correct his record by upgrading his discharge 
(general,  under  honorable  conditions)  to  honorable.    The  applicant  argued  that  his 
discharge  should  be  upgraded  because  “to  the  best  of  my  knowledge,  [there]  is  no 
reason not to change.”  
 

SUMMARY OF THE APPLICANT’S RECORD 

 
 
The  applicant  enlisted  in  the  Coast  Guard  on  December  12,  1960,  at  the  age  of 
eighteen.    On  April  29,  1963,  the  applicant  was  admitted  to  a  Public  Health  Service 
hospital  where  he  underwent  a  physical  and  psychiatric  evaluation,  prompted  by  his 
father’s  allegations  that  his  son  was  having  difficulties  with  social  adjustment.    The 
physician who performed the initial clinical evaluation diagnosed the applicant with an 
immature  personality.    In  addition,  the  physician  noted  that  the  applicant  was 
“mentally responsible … to distinguish right from wrong …,” and that this condition 
was “neither incurred while [on] or aggravated by any period of active duty in the U.S. 

Coast  Guard.”    Despite  having  found  no  disqualifying  mental  or  physical  defects 
ratable  as  a  disability,  the  physician  nonetheless  indicated  in  his  report  that  “This 
individual  does  not  meet  the  minimum  standards  as  set  forth  in  …  the  Coast  Guard 
Medical Manual.”  The physician recommended that the applicant be discharged from 
the Coast Guard. 
 
 
On April 30, 1963, the applicant was evaluated in the hospital by a psychiatrist 
with  the  Public  Health  Service.    Following  this  evaluation,  the  psychiatrist  diagnosed 
the  applicant  as  having  a  “Character  disorder  –  passive  –  aggressive  type”  and 
recommended  that  he  be  discharged  from  the  Coast  Guard.    The  applicant  was 
discharged from the hospital and returned to duty. 
 
 
 
On May 17, 1963, the applicant sent a letter to his commanding officer (CO) in 
which he acknowledged that he had been recommended for discharge for unsuitability, 
had been advised that he could make a statement, and that he did not desire to make a 
statement. 
 
 
On May 21, 1963, the applicant’s CO issued a memorandum to the Commandant 
in which he recommended that the applicant be discharged “from the service by reason 
of unsuitability because of character and behavior disorders.”  The CO noted that his 
decision was premised on the recommendations of the two physicians who evaluated 
the applicant during his hospitalization. 
 
At some point in May 1963, the Intelligence and Law Enforcement Branch was 
 
asked to conduct an investigation into the applicant’s character and behavior disorders.   
 
 
On May 31, 1963, the Commandant issued a letter to the applicant’s CO in which 
he disapproved the recommendation of discharge contained in the CO’s letter of May 
21, 1963.  The Commandant stated that there is “insufficient evidence that this case fits 
any  of  the  categories  for  unsuitability  as  outlined  in  Article  12.B.10.  of  the  Personnel 
Manual.” 
 
 
Sometime  in  early  July  1963,  the  applicant  admitted  to  his  CO  that  he  had 
homosexual tendencies.  As a result of the admission, the applicant was transferred off 
of his ship and onto a Coast Guard base for an investigation under Article 12.B.10. of 
the  Personnel  Manual.1    On  July  11,  1963,  the  applicant’s  CO  noted  in  a  letter  to  the 
Commandant that the “applicant made a verbal admission to his Commanding Officer 
regarding his homosexual tendencies … .” Shortly thereafter, on July 16, 1963, the CO 
issued  a  memorandum  to  the  applicant  and  once  again  stated  that  he  was 
recommending that the applicant be discharged from the Coast Guard.  The CO stated 
                                                 
1  Article  12.B.10.  of  the  Personnel  Manual  (at  the  time  of  the  applicant’s  discharge)  stated  that  “…  [p]rior  to 
recommending  the  discharge  of  an  individual  for  unsuitability,  the  commanding  officer  shall  thoroughly 
investigate the case… .” 

in his memorandum that his decision to discharge the applicant was “due to receipt of 
official  Coast  Guard  Intelligence  information  which  indicated  a  classification  in  your 
case as outlined in reference (a) (Class II Homosexual).” 
 

On July 17, 1963, the applicant signed a statement wherein he waived his right to 
a hearing before an investigatory body.  The statement also contained affirmations that 
the applicant understood that the Commandant would determine and specify the type 
of  discharge  he  would  receive,  and  that  he  fully  understood  the  ramifications  of 
receiving a discharge under other than honorable conditions.   

 
On  July  18,  1963,  the  applicant’s  CO  issued  a  letter  to  the  Commandant 
recommending  that  the  applicant  be  discharged  from  the  Coast  Guard  because  an 
investigation determined that the applicant was a Class II homosexual.2  The CO asked 
that  the  Commandant  consider  giving  the  applicant  an  honorable  discharge,  because 
the applicant had no “military offenses or civil charges during his enlistment.” 

 
On  July  24,  1963,  the  Commandant  directed  that  the  applicant  be  discharged 
from  the  Coast  Guard  pursuant  to  Article  12.B.12.  of  the  Personnel  Manual.    He 
indicated that the applicant should receive a “general discharge by reason of unfitness.”   
 

The applicant was discharged on August 2, 1963.  The applicant’s DD Form 214 
indicates  that  he  was  discharged  under  honorable  conditions,  pursuant  to  Article 
12.B.12. of the Personnel Manual.  The record indicates that during the applicant’s two 
years  of  service,  he  received  an  average  proficiency  score  of  3.72  and  an  average 
conduct score of 3.98 out of 4.0. 

 

VIEWS OF THE COAST GUARD 

 
 
On  January  10,  2005,  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  deny  the  applicant’s 
request.  The JAG recommended that the Board deny relief because the application was 
untimely and it is not in the interest of justice to waive the statutory three-year filing 
deadline.  Moreover, the JAG stated that if the Board excuses the applicant’s failure to 
timely file his application, then relief should be denied because the applicant failed to 
support  his  claim  that  the  Coast  Guard  erred  in  discharging  him  with  a  general 
discharge under honorable conditions.   
 

In its memorandum to the JAG, CGPC recommended that the applicant’s request 
should  be  denied  because  no  error  was  committed  at  the  time  of  the  applicant’s 

                                                 
2  Class  II  homosexuals  were  those  members  who,  while  on  active  duty,  engaged  in  one  or  more 
homosexual acts not within the purview of Class I.  Article 12.B.12.d.6. of the Personnel Manual. 

discharge.    CGPC  noted  that  the  applicant  made  a  verbal  admission  to  his  CO  of  his 
homosexual tendencies, an investigation was conducted in accordance with 12.B.10. of 
the Personnel Manual, and the applicant was discharged forthwith in accordance with 
the Coast Guard policy in effect at that time.   
 
 
The  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.    However,  CGPC  noted  that  under  the  Coast  Guard’s  current  policy  of 
“don’t  ask,  don’t  tell”,  a  member  “may  be  discharged  for  homosexuality  based  on 
evidence and/or statement(s) that demonstrates the member has a propensity or intent 
to  engage  in  homosexual  acts.    And  as  a  result,  that  member  may  receive  a  General 
discharge  Under  Honorable  Conditions.”    CGPC  noted  that  the  applicant  freely 
admitted  to  having  homosexual  tendencies,  and  this  voluntary  admission  to  his  CO 
clearly  meets  the  criteria  of  a  statement  that  demonstrates  a  propensity  or  intent  to 
engage  in  homosexual  acts.    Accordingly,  CGPC  noted,  under  current  Coast  Guard 
policy, the applicant would have received the same type of discharge that he received 
upon his discharge in 1963. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On January 12, 2005, 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.12 (Unfitness) of the Coast Guard Personnel Manual (at the time of 
the  applicant’s  discharge)  provided  that  an  enlisted  person  could  be  separated  by 
reason of unfitness, with an undesirable discharge, and that all cases of homosexuality 
should be processed as set forth in paragraph (d) of 12.B.12.3 

  
Article 12.B.12.d.6. of the Personnel Manual provided a classification for defining 

 
three classes of homosexual conduct:  
 

a.    Class  I  is  defined  as  those  cases  where  accompanied  by  assault  or  coercion  as 
characterized  by  an  act  in  or  to  which  the  other  person  involved  did  not  willingly 
cooperate  or  consent,  or  for  which  the  consent  was  obtained  through  force,  fraud,  or 
actual  intimidation,  thereby  constituting  invasion  of  the  rights  of  another,  or  any 
homosexual action with a child under the age of 16 years without regard to whether the 
child cooperated un or consented to such an act.  
 

                                                 
3  Paragraph  (d)  of  12.B.12.  contains  a  protracted  description  of  the  Coast  Guard’s  policy  and  the 
administrative procedures for the disposition of personnel in cases involving homosexual tendencies or 
acts. 

b.  Class II is defined as those cases where an enlisted member, while on active duty in 
the Coast Guard, has engaged in one or more homosexual acts not within the purview of 
Class I.  Class II also includes all cases falling within Class I in which it is determined not 
to prefer charges, or, if charges are preferred, not to refer them to a court-martial for trial, 
or such cases where trial is held but does not result in a punitive discharge. 

 

c.  Class III is defined as those cases where an enlisted member: 
 

(1)  Exhibits,  professes  or  admits  to  homosexual  tendencies,  or  habitually 
associates with persons known to be homosexuals, but there is no evidence that he has, 
while on active duty in the Coast Guard, engaged in one or more homosexual acts, or has 
proposed or attempted to perform an act of homosexuality. 

 

 

(2)  Prior  to  entering  the  Coast  Guard,  exhibited,  or  admitted  to  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  he  has,  while  on  active  duty  in  the  Coast 
Guard, engaged in or proposed or attempted to perform an act of homosexuality. 
 
Article  12.B.12.d.1.c.  stated  that  before  a  member  could  be  discharged  for 
homosexuality,  “care  must  be  exercised  that  all  persons  involved  are  completely 
investigated and reported and that appropriate information is expeditiously forwarded 
to other commands as necessary to complete all cases.” 

 
Article  12.B.3.  stated that  an  honorable  discharge  could  be  issued  for  members 
discharged for unfitness, provided that member achieved a minimum final average of 
2.7 in proficiency and 3.25 in conduct. 
 

Article  12.B.2.f.  of  the  Personnel  Manual  (current)  states  that  a  member’s 
commanding  officer  or  higher  authority  can  effect  a  separation  with  an  honorable 
discharge if the member is eligible for or subject to discharge and the member merits an 
honorable discharge under prescribed standards.  A discharge due to unfitness is listed 
as warranting an honorable discharge.  The type of discharge will also depend upon the 
member’s military behavior and proficient performance of duty with due consideration 
for the member’s age, length of service, grade, and general aptitude.  Through 30 June 
1983, the member must have made a minimum final average of 2.7 in proficiency and 
3.0 in conduct.   
 

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  three  years  after  the 
applicant  discovers  the  alleged  error  in  his  record.    10  U.S.C.  §  1552.    The  applicant 
signed and received his discharge documents in 1963, indicating that he was receiving a 
discharge under honorable conditions for unfitness.  However, the Board finds that the 
applicant  knew  or  should  have  known  the  type  of  discharge  he  received  when  he 
signed his DD 214.  Thus, his application was untimely. 

 
3. 

4.   

Pursuant to 10 U.S.C. § 1552, the Board may waive the three-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).  The applicant did not provide a reason why 
he  waited  more  than  40  years  to  request  that  his  discharge  be  upgraded.  On  his 
application to the BCMR, the applicant merely noted that the Board should consider his 
application  because  “it  is  the  right  thing  to  do.”    However,  a  cursory  review  of  the 
merits  of  this  case  indicates  that  the  type  of  discharge  received  by  the  applicant  was 
unjust.  Therefore, the Board finds that it is in the interest of justice to waive the statute 
of limitations in this case.  
 
 
The record indicates that following the applicant’s verbal admission of his 
homosexual  propensities,  the  Coast  Guard  conducted  an  investigation  pursuant  to 
Article  12.B.12.d.1.c.,  which  requires  that  an  investigation  be  conducted  before  a 
member  is  discharged  for  homosexuality.    Although  the  record  does  not  contain  the 
findings  of  that  investigation,  the  Board  presumes  that  the  investigation  uncovered 
evidence  that  supported  the  applicant’s  admission  that  he  had  homosexual 
propensities.    The  Board  makes  this  presumption  because  the  record  contains  a 
memorandum  to  the  applicant  from  his  CO,  indicating  that  the  Coast  Guard  had 
completed  its  investigation  into  the  applicant’s  admissions  and  determined  that  he 
should  be  classified  as  a  Class  II  homosexual.4    Moreover,  the  Board  is  further 
persuaded  that  the  Coast  Guard  conducted  the  investigation  because  the  record 
contains  a  memorandum  from  the  Commandant  directing  that  in  light  of  the 
information  obtained  in  the  investigation,  the  applicant  should  be  discharged  for 
unfitness.  
 
  
 
The Board finds that the Coast Guard committed an error at the time of 
the applicant’s discharge in 1963.  Article 12.B.2.f. of the Personnel Manual stated that 
members discharged for unfitness should receive an honorable discharge if warranted 
by that member’s military behavior, proficiency in his duties, and his personal conduct.  
The  applicant’s  CO  noted  in  his  recommendation  for  discharge  that  the  applicant’s 
                                                 
4 The Board notes that notwithstanding any evidence gathered during the Coast Guard’s investigation, he 
could have been classified as a Class III homosexual.  However, that difference in classification would not 
affect the outcome of this case. 

  
5. 

6. 

“performance  of  duty  and  character  of  service  indicates  that  favorable  consideration 
should be given to an honorable type of discharge.  He has no military offenses or civil 
charges  in  his  enlistment.”    Moreover,  the  record  also  indicates  that  during  the 
applicant’s two years of service, he received an average proficiency score of 3.72 and an 
average conduct score of 3.98 on a scale of 4.0.  Article 12.B.3. stated that an honorable 
discharge could be issued for members discharged for unfitness, provided that member 
achieved a minimum final average of 2.7 in proficiency and 3.25 in conduct.  Therefore, 
an honorable discharge was warranted by the applicant’s military behavior and his high 
marks for duty and conduct. 
 
 
The  Board  finds  that  the  applicant  would  have  received  an  honorable 
discharge under current Coast Guard policy.  Article 12.E.4.1. of the current Personnel 
Manual  states  that  discharges  for  homosexual  conduct  “shall  be  characterized  as 
Honorable or General (under Honorable Conditions) if the sole basis for separation is 
homosexual conduct unless aggravating circumstances are included in the findings.”  In 
this case, the applicant’s admission to his CO that he had homosexual propensities was 
the  sole  basis  for  his  discharge,  and  the  record  is  bereft  of  any  aggravating 
circumstances.  Moreover, although factor marks were not in use by the Coast Guard 
when  the  applicant  was  discharged,  Article  12.B.2.f.  of  the  current  Personnel  Manual 
states  that  members  discharged  prior  to  June  30,  1983,  with  minimum  final  average 
marks of 2.7 in proficiency and 3.0 in conduct are eligible for honorable discharge.  The 
applicant’s final averages greatly exceeded these minimum standards.    
 
In  light of  the  absence  of  any  aggravating  circumstances,  the  applicant’s 
 
high  marks  in  performance  and  conduct,  and  his  CO’s  recommendation  that  he  be 
given an honorable discharge, the Board finds that the Coast Guard committed an error 
at the time of the applicant’s discharge.  Furthermore, the applicant would be eligible 
for  an  honorable  discharge  under  current  Coast  Guard  policy.    Accordingly,  the 
applicant’s discharge should be corrected to “honorable.”    
 
 
 

Accordingly, the applicant’s request should be granted.  

7. 

8. 

ORDER 

 
 
The  application  of  former  XXXXXXXXXXXXXXXXXXXXXX,  USCG,  for  the 
correction of his military record is granted.  The applicant’s DD 214 shall be corrected to 
show that he received an honorable discharge.