DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-009 
 
  
   

 

 
 

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 October 20, 2004, upon receipt of the applicant’s completed application and 
military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  30,  2005,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  upgrading  his 
RE-4 (not eligible for reenlistment) reenlistment code to RE-1 (eligible for reenlistment).  
He further requested that his DD Form 214 be corrected to show that he was promoted 
to pay grade E-4.   
 
 
The applicant stated that although he discovered the alleged error on September 
30,  1977,  it  "should  be  corrected  because  it  was  never  right."    He  alleged  that  the 
documents  in  his  military  record  bearing  his  signature  acknowledging  the  proposed 
discharge and electing not to make a statement in his own behalf were forgeries.  He 
stated,  "I  was  never  given  proper  or  legal  counsel  or  court-martialed,  or  taken  to 
[captain's] mast during this process."   
 
In his statement to the Board, the applicant described a racial incident to which 
 
he was allegedly subjected prior to his discharge while serving with the Coast Guard in 
Greenville,  Mississippi.    He  stated  that  one  day  a  newspaper  reporter  was  on  board 

observing their operations.  According to the applicant, at the end of the day the cutter 
pulled into a private port and he and the reporter went into a store to get a beer.  He 
stated when he placed the beer on the counter, the owner of the store replied, "We don't 
serve n------- here."  The applicant indicated that this upset him and he went back to the 
ship, got his sea bag, and called for a car to take him to the gate so that he could leave 
the cutter.   He stated that when the commanding officer (CO) learned about the car, he 
ordered  the  applicant  back  to  the  cutter.    The  applicant  stated  that  later  the  CO  read 
about the incident in the local newspaper and was furious.  According to the applicant, 
the CO cursed him and gave him every bad work assignment.  The applicant stated that 
he phoned his mother about the incident and she contacted the group commander.  He 
stated  that  the  group  commander  came  to  the  cutter  and  told  him  that  "[the  group 
commander] would give [the applicant] an honorable discharge and full benefits if [he] 
would just leave."  The applicant stated he has had a hard time dealing with the racial 
incident ever since his untimely dismissal from the Coast Guard.   
 
 
The  applicant  submitted  a  statement  from  his  mother  corroborating  the 
occurrence  of  the  alleged  racial  incident.    She  claimed  that  the  Coast  Guard  made  a 
verbal  deal  with  the  applicant  that  if  he  did  not  press  charges,  he  would  receive  an 
honorable discharge with full benefits.  She stated that the racial incident was key to the 
applicant's diagnosis of Post Traumatic Stress Syndrome (PTSS).   
 
 
The  applicant  submitted  a  mental  status  examination  dated  April  30,  2004.    In 
that  report,  a  Department  of  Veterans  Affairs  (DVA)  psychiatrist  stated  that  the 
applicant suffers with "alcohol and cocaine dependence in early remission, dysthymia, 
and anger dyscontrol problems." The medical note also stated that the applicant is being 
treated with the drug Depakote.  The medical note further revealed that although the 
applicant  initially  sought  treatment  from  the  DVA  for  PTSD,  a  psychiatrist  had 
determined that his symptoms were not consistent with that disease. 
 

  

SUMMARY OF THE RECORD AND SUBMISSIONS 

 
 
The  applicant  enlisted  in  the  Coast  Guard  on  June  23,  1975,  and  he  was 
honorably discharged on September 30, 1977, under Article 12-B-18 (misconduct) of the 
Personnel  Manual,  with  an  HKA  separation  code  and  an  RE-4  reenlistment  code.  
During  his  time  on  active  duty,  the  applicant  was  assigned  to  three  different 
commands,  the  last  being  in  Greenville,  Mississippi.    As  discussed  below,  he  was 
punished  under  Article  15  of  the  Uniform  Code  of  Military  Justice  (known  as  non-
judicial punishment (NJP) or captain's mast) and he was counseled often. 
 
 
On  December  18,  1975,  while  assigned  to  a  unit  in  Japan,  the  applicant  was 
punished at captain's mast for several violations of absence from his place of duty.   His 
punishment included two hours of extra duty for fourteen days, forfeiture of $50 pay 
for one month, and reduction to the next inferior pay grade, suspended for 6 months.   

 
 
On January 27, 1976, he was punished at captain's mast for a violation of Article 
128  (striking  a  dependent).    His  punishment  included  extra  duty,  forfeitures,  and  a 
reduction to pay grade E-1.1 
 
 
On  March  12,  1976,  the  applicant  was  counseled  on  an  administrative  remarks 
page (page 7) about his inaptitude, specifically about his "lack of general adaptability, 
unhandiness and inability to learn."  He was warned that he could be discharged if his 
behavior  and  performance  did  not  improve.    The  applicant  acknowledged  this  entry 
with his signature.   
 
 
assigned work detail. 
 
 
On October 18, 1976, the applicant was punished at captain's mast for violating 
Article  91  of  the  UCMJ,  by  showing  disrespect  to  a  senior  petty  officer.    He  was 
punished  by  being  restricted  to  the  limits  of  the  station  and  a  suspension  of  his 
privileges.  
  

On  August  18,  1976,  the  applicant  was  warned  about  malingering  during 

On  February  9,  1977,  while  assigned  to  a  Mississippi  unit,  the  applicant  was 
punished at captain's mast for an unauthorized absence of less than twenty-four hours. 
His punishment included seven days of extra duty. 
 
On February 9, 1977, the applicant was counseled on a page 7 about the overall 
 
deficiencies  in  his  past  performance  and  conduct.    The  entry  further  stated  that  the 
applicant  was  advised  that  under  Coast  Guard  policy  he  could  be  "Expeditiously 
Discharged  for  Marginal  Performance  and  Absenteeism"  because  of  his  low  semi-
annual marks and frequent violations of the UCMJ.  The applicant was informed that he 
would be closely supervised and evaluated as a candidate for separation.   The page 7 
stated  that  the  applicant  expressed  a  desire  to  improve  and  that  he  wanted  to  be 
transferred to a new unit for a fresh start.  The applicant acknowledged the counseling 
entry.    
 
On  May  31,  1977,  the  applicant  was  again  taken  to  captain's  mast  at  the 
 
Mississippi unit for unauthorized absences and for disobeying an order by placing an 
FTS telephone call.  He was punished with 14 days extra duty.   
 
 
On June 3, 1977, the applicant's CO informed the applicant that he was initiating 
action  to  discharge  him  from  the  Coast  Guard  due  to  his  disciplinary  record  and 
because of other numerous minor infractions, such as sleeping while on watch, sleeping 

                                                 
1   The achievement sheet in the applicant's military record shows that he was advanced to SA (pay grade 
E-2) on May 6, 1976.  The achievement sheet shows no further advancements.   

On June 8, 1977, the applicant signed a statement acknowledging notification of 

during  working  hours,  fighting,  tardiness,  and  showing  disrespect  to  senior  petty 
officers.  The CO informed the applicant that he had the right to submit a statement in 
his own behalf, in which he could object to the discharge.   
 
 
On  June  3,  1977,  the  CO,  through  his  chain  of  command,  requested  that  the 
applicant be discharged from the Coast Guard under honorable conditions (known as a 
general discharge) because of marginal performance.   
 
 
the proposed discharge and objected to it but waived his right to submit a statement.    
 
 
On July 11, 1977, the Commander, Second Coast Guard District, recommended 
that the applicant be discharged from the Coast Guard due to misconduct rather than 
marginal performance.   Based on an average of the applicant's proficiency mark (2.95 
on  a  scale  of  1  to  4,  with  4  being  highest)  and  his  average  conduct  mark  (3.51),  the 
Commander  recommended  that  the  applicant  receive  an  honorable  discharge.2    The 
Commander further stated the following: 
 

Contact  with  [the  applicant]  revealed  that  he  objects  to  the  proposed 
discharge  action  because  he  feels  he  can  improve  his  performance  and 
successfully  complete  his  enlistment. 
  However,  he  continues  his 
disruptive  behavior  in  spite  of  the  attempts  to  motivate  him  through 
proper  punishment  and  appropriate  counseling.    It  is  apparent  that  all 
efforts  at  salvaging  the  individual  and  producing  an  effective  Coast 
Guardsman  have  failed. 
  Further  retention  would  only  place  an 
unnecessary burden on the command and an unnecessary drain on Coast 
Guard resources.   

 
 
On  July  21,  1977,  the  Commandant  disapproved  the  CO's  request  for  a 
convenience  of  the  government  discharge  by  reason  of  marginal  performance  and 
directed  the  applicant's  CO  to  inform  the  applicant  that  the  Commandant  was 
contemplating a discharge by reason of misconduct.  The CO was directed to obtain a 
new  notification  statement  from  the  applicant  and  if  a  general  discharge  under 
honorable  conditions  was  contemplated,  the  applicant  should  be  offered  the 
opportunity to consult with legal counsel 
 
 
On  August  11,  1977,  the  applicant  acknowledged  that  the  Commandant  was 
contemplating discharging him from the Coast Guard under honorable conditions and 
that he could submit a statement in his own behalf, which he waived. 
 

                                                 
2   According to Article 12.B.3. of the Personnel Manual then in effect, an "individual must have made a 
minimum final average of 2.7 in proficiency and 3.0 in conduct" to receive an honorable discharge. 

 
On September 1, 1977, the Commandant approved the applicant's discharge by 
reason of misconduct.  On September 30, 1977, the applicant was honorably discharged 
from  the  Coast  Guard  due  to  misconduct,  with  an  HKA  separation  code  and  a  RE-4 
reenlistment code.   
 

VIEWS OF THE COAST GUARD 

 
 
On  March  9,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.  
 

In  recommending  denial  of  relief,  the  JAG  argued  that  the  application  was 
untimely.    He  stated  that  applications  for  correction of  military records  must  be  filed 
within three years of the date the alleged error or injustice was, or should have been, 
discovered.    33  CFR  §  52.22.    He  said  that  the  Board  could  waive  the  statute  of 
limitations and consider the case, if the applicant presents sufficient evidence that it is 
in the interest of justice to do so.  As the JAG argued, the length of the delay, the reasons 
for the delay, and the likelihood of the applicant's success on the merits of his claim are 
factors to be considered in deciding whether to waive the statute of limitations.  
 

The JAG stated that the applicant filed his application more than 20 years beyond 
the statute of limitations, despite becoming aware of the alleged error on the date of his 
discharge in December 1977.  The JAG noted that the applicant offered no reason for the 
delay  but  asserted  that  his  record  should  be  corrected,  "because  it  was  never  right."   
According to the JAG "Applicant's self-serving claim of injustice does not provide good 
cause for his failure to timely file."   
 

The JAG stated that the applicant offered no evidence to support his claim that 
his  DD  Form  214  was  improperly  prepared.      He  further  stated  that  absent  strong 
evidence to the contrary, government officials are presumed to have carried out their 
duties correctly, lawfully, and in good faith.  Arens v. United States, 969 F.2d 1034, 1037 
(1992).  Moreover, the applicant bears the burden of proving error.  33 C.F.R. § 52.24.   
He  stated  that  the  applicant  has  failed  to  meet  his  burden  of  proving  error  since  he 
offered no evidence that his signature was forged on his discharge documents or that he 
should have been advanced to pay grade E-4, except for his own self-serving statement 
and that of his mother. The JAG stated that in contrast, the applicant's record is replete 
with  evidence  of  his  misconduct  and  mediocre  performance  at  three  separate  Coast 
Guard units.   The JAG stated that the Coast Guard acted properly and in accordance 
with established procedures in discharging the applicant as it did.  

 
The  JAG  attached  comments  from  the  Commander,  Coast  Guard  Personnel 
Command (CGPC) as Enclosure (1) to the advisory opinion.   In recommending that the 
Board deny the applicant's request, CGPC stated the following: 

There is no evidence in the Applicant's record nor was any presented by 
the applicant to support his allegation that he should have been advanced 
to E-4.  The record shows that the applicant was advanced to pay grade E-
2,  but  was  subsequently  reduced  back  to  pay  grade  E-1  on  January  28, 
1976  as  a  result  of  [NJP]    .  .  .  Subsequently,  the  applicant  was  able  to 
advance  to  pay  grade  E-2  and  complete  the  Seaman  (E-3)  course  on 
October 22, 1976 . . . However, the Applicant's pattern of misconduct . . . 
deficiencies  in  his  past  performance  .  .  .  and  processing  for  separation 
precludes  me  from  assuming  that  the  Applicant  should  have  been 
advanced beyond the pay grade of E-2.   

 

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  a  pattern  of  misconduct.  
While  the  Applicant  alleges  that  the  conditions  that  led  to  his  discharge 
were  racially  motivated  while  stationed  in  Mississippi  it  fails  to  account 
for  the  pattern  of  misconduct  progressing  prior  to  his  assignment  in 
Mississippi.  I believe the record refutes this allegation and I am satisfied 
that  he  was  afforded  full  due  process  during  the  disciplinary  and 
separation processes he underwent, and that he didn't suffer an injustice.   

 

 
 
 
 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On March 10, 2005, the BCMR sent the applicant a copy of the views of the Coast 
Guard  and  invited  him  to  respond.    The  BCMR  did  not  receive  a  response  from  the 
applicant. 
 

APPLICABLE LAW 

 
Personnel Manual (CG-207)   
 
 
Article 12-B-3 (Standards for Discharge) of the Personnel Manual in effect at the 
time  of  the  applicant's  discharge  stated  that  an  honorable  discharge  by  reason  of 
misconduct could be awarded.  Subsection (2) states that "a member will not necessarily 
be denied an honorable discharge solely by reason of a specific number of convictions 
by  courts-martial  or  actions  under  Article  15  of  the  [UCMJ]  during  his  current 
enlistment or period of obligated service.  Subsection (2)a. states that an individual must 

have made a minimum final average of 2.7 in proficiency and a 3.0 in conduct for an 
honorable discharge.   
 
Article 12-B-18(a) stated that an enlisted member could be separated by reason of 
 
misconduct under other than honorable conditions, with general discharge, or with an 
honorable  discharge  as  warranted  by  the  particular  circumstances  of  a  given  case.  
Subsection (b)(5) states that "[f]requent involvement  of discreditable nature with civil 
or military authorities" is a basis for a discharge by reason of misconduct.  
 

FINDINGS AND CONCLUSIONS 

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

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.   
 

2.  The applicant requested an oral hearing before the Board.  The Chair, acting 
pursuant to 33 C.F.R. § 52.31, 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 applicant discovered or 
should  have  discovered  the  alleged  error  or  injustice.    See  33  CFR  52.22.      This 
application was submitted approximately 20 years beyond the statute of limitations.   
 
 
4.  The Board may still consider the application on the merits, however, if it finds 
it is in the interest of justice to do so.  The interest of justice is determined by taking into 
consideration the reasons for and the length of the delay and the likelihood of success 
on the merits of the claim. See, Dickson v.  Secretary of Defense, 68 F.3d 1396 (D.D.C. 
1995); Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992).  The applicant admitted on his 
application that he discovered the alleged error in 1977, but reasoned that the statute of 
limitations should be waived because his discharge was never right.  The Board is not 
persuaded by the applicant's reason for not filing his application sooner. 
 
 
5.  With respect to the merits of the case, the Board finds that the applicant is not 
likely to prevail.  He claimed that he was the victim of a racial incident while assigned 
to  a  unit  in  Mississippi,  which  prompted  his  CO's  superior  officer  to  offer  him  an 
honorable discharge with full benefits.  Nothing in the military record indicates that any 
bargaining occurred between the applicant and members of his chain of command with 
respect  to  the  reason  for  and  type  of  discharge  he  would  receive.    The  applicant 
received  an  honorable  discharge  because  his  average  proficiency  and  conduct  marks 

met  the  minimum  requirements  for  an  honorable  discharge,  as  permitted  under  the 
Personnel Manual.  Further, he has offered no evidence, except for his and his mother's 
statements that his misconduct discharge and RE-4 reenlistment code were assigned in 
error.    Their  statements  do  not  establish  by  a  preponderance  of  the  evidence  that  the 
reenlistment code and misconduct discharge are erroneous, particularly in light of the 
applicant's military record, which is replete with captain's masts and counseling entries. 
 
 
6.    The  applicant's  allegation  that  his  signature  was  forged  on  the  documents 
related  to  his  discharge  is  a  mere  allegation  with  no  corroboration.      The  applicant 
complained that he did not receive legal counsel with respect to his discharge.  Article 
12-B-18  of  the  Personnel  Manual,  stated  that  a  member  should  be  afforded  the 
opportunity to consult with counsel if a general discharge is being contemplated.  Since the 
applicant  received  an  honorable  discharge,  as  recommended  by  the  Commander, 
Second Coast Guard District, any failure to provide him with the opportunity to consult 
with a lawyer was harmless, particularly in light of the fact that the applicant had less 
than eight years of service and was not entitled to an administrative hearing.   
 
 
7.    Moreover,  there  is  no  evidence  in  the  record  that  the  applicant  was  ever  a 
petty officer third class (pay grade E-4) prior to or at the time of his discharge.  Nor has 
the  applicant  presented  evidence  that  he  suffered  from  any  physical  disability  while 
serving on active duty.   
 
 
8. Accordingly, due to length of the delay, the unpersuasive reason for not filing 
his application sooner, and the probable lack of success on the merits of his claim, the 
Board finds that it is not in the interest of justice to waive the statute of limitations in 
this case and it should be denied because it is untimely. 
 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 

The  application  of  __________,  USCG,  for  correction  of  his  military  record  is 

ORDER 

 

 
 

hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Bruce D. Burkley 

 

 

 
 Raghav Kotval 

 

 

 
 Kevin M. Walker