DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-041 
 
Xxxxxxxxxxxxxxxxxxxx 
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FINAL DECISION 

 
AUTHOR:  Andrews, J.  
 
 
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 Chair docketed the 
case  on  December  29,  2004,  upon  receipt  of  the  applicant’s  application  and  military 
records.   
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  September  22,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  who  received  a  general  discharge  under  honorable  conditions 
from the Coast Guard on September 3, 1999, for unacceptable conduct, asked the Board 
to correct his record by upgrading his discharge to honorable.   
 

The  applicant  alleged  that  he  was  scheduled  for  an  honorable  discharge  on 
August  12,  1999,  but  instead  he  was  taken  to  mast1  by  his  commanding  officer  (CO) 
after being charged with violating the Uniform Code of Military Justice (UCMJ).  After 
he pled guilty at mast and was sentenced to 60 days of restriction to the ship and to for-
feiture of one-half his pay for two months, he appealed the sentence as being too harsh.  
Because the reviewing authority failed to act timely in reviewing his appeal, the appli-

                                                 
1 Under Article 15 of the UCMJ, COs may award members non-judicial punishment (NJP) by taking them 
to “mast,” in lieu of court-martial, for minor violations of the UCMJ.  Punishment at mast is limited to 
confinement  on  bread  and  water  for  not  more  than  3  days;  correctional  custody  for  not  more  than  30 
days; reduction in pay grade; forfeiture of not more than one-half the member’s pay for 2 months; extra 
duties for up to 45 days; and restriction to specified limits for not more than 60 days. 

cant alleged, his non-judicial punishment (NJP) was “reversed.”  The applicant alleged 
that  his  general  discharge  was  a  result  of  this  NJP  and  that  because  the  NJP  was 
reversed,  he  should  have  received  an  honorable  discharge  instead  of  a  general  dis-
charge.    He  alleged  that  a  message  dated  August  16,  1999,  from  his  command  to  the 
Coast Guard Personnel Command (CGPC) proves that the general character of his dis-
charge was based upon the NJP that was reversed. 

 
The  applicant  alleged  that  when  CGPC  authorized  his  general  discharge  on 
August 24, 1999, CGPC did not know that his mast appeal was pending review by the 
Commander of the Atlantic Area.  He alleged that the wording and timing of CGPC’s 
messages prove that they were not aware of his appeal or of the reversal of the NJP.  He 
alleged  that  if  CGPC  had  known  that  his  appeal  was  pending  and  that  the  NJP  was 
reversed, he would not have received a general discharge. 

 
The applicant further alleged that in violation of Article 12.B.16.d.3. of the Per-
sonnel Manual, he was not given an opportunity to consult with an attorney prior to his 
discharge.  He alleged that there “is no documentation stating [that he] was given such 
an opportunity, or that he waived or accepted that right.” 

 
The applicant also alleged that the report of the investigation for one of his prior 
NJPs and several page 7s (administrative entries) in his record prove that various mem-
bers of his command were out to get him.  He alleged that he was punished harshly for 
very minor infractions that were “hardly worth the effort of documenting.” 
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

 

 
On July 14, 1998, the applicant enlisted in the Coast Guard for four years.  Upon 
completing boot camp, the applicant was assigned to a cutter and advanced from sea-
man recruit (SR) to seaman apprentice (SA). 
 
On December 28, 1998, the cutter’s weapons officer entered a page 7 in the appli-
 
cant’s record to counsel him about being “disrespectful toward senior personnel.”  The 
page 7 indicates that after being told by a supervisor to help clean the deck, he refused 
to do so.  The applicant was advised that any future incidents would lead to discipli-
nary action. 
 
 
On December 30, 1998, the weapons officer entered another page 7 in the appli-
cant’s record to counsel him about his attitude and disregard for authority.  The page 7 
stated that when asked to relieve the lookout by a first class petty officer, the applicant 
“made  an  uncalled  for  facial  gesture  and  answered  coyly”  and  that  such  actions  are 
punishable  under  the  UCMJ  as  provoking  speech  and  gestures.    The  applicant  was 
advised that any future incidents would lead to disciplinary action. 
 

 
On  January  13,  1999,  the  weapons  officer  entered  a  page  7  in  the  applicant’s 
record to counsel him about his failure to report for duty on time.  The page 7 indicates 
that  on  December  22,  1998,  the  applicant  was  30  minutes  late  to  the  watch  and  that 
despite counseling he was 30 minutes late to muster on December 23, 1998. The appli-
cant was advised that any future incidents would lead to disciplinary action. 
 
 
On  January  26,  1999,  the  weapons  officer  entered  a  page  7  in  the  applicant’s 
record to counsel him about his attitude and disregard for authority.  The page 7 states 
that his “poor work habits and failure to comply with simple task directions are taxing 
your section leader. …  Your lackadaisical attitude toward your chain of command and 
assigned work projects is causing a drain on the system.  Your Division Chief and Divi-
sion  Officer  have  counseled  you  on  several  occasions.  …    Any  future  discord  within 
your  duty  section  as  a  result  of  your  actions  will  result  in  disciplinary  actions  taken 
against you.” 
 
 
On February 3, 1999, following an investigation, the applicant’s CO took him to 
mast for having been absent without leave (AWOL) from 8:45 a.m. January 23 to 10:40 
p.m. January 24, 1999.  The CO dismissed the charge with a warning.   
 

On February 18, 1999, following an investigation, the CO took the applicant to 
mast for dereliction of duty and treating superiors with contempt and disrespect.  The 
CO sentenced the applicant to 30 days of “correctional custody” at a Navy Brig and for-
feiture of one-half his pay for two months.  However, the forfeiture was suspended for 
four  months.    The  applicant  also  received  a  performance  evaluation  with  very  low 
marks.2  On a scale of 1 to 7, with 7 being best, he received two marks of 1, five marks of 
2, five marks of 3, and two marks of 4 in the various performance categories; an unsatis-
factory conduct mark; and a mark of “not recommended” for advancement.  The page 
7s that document the low marks criticize the applicant’s failure to adapt to a military 
lifestyle at sea, failure to qualify for basic skills, failure to follow rules and regulations, 
lack of respect for senior personnel, arguing with supervisors about work assignments, 
refusal  to  obey  orders  and  perform  duties,  below  standard  work,  failure  to  wear 
required  safety  gear,  use  of  racial  slurs  and  curses  against  seniors  and  peers,  lack  of 
integrity, lack of loyalty, etc.  The page 7s indicate that the applicant had been assigned 
mentors, but that he cursed and insulted them and did not respond to their efforts. 
 
 
On May 14, 1999, following an investigation, the CO took the applicant to mast 
for failure to obey an order to perform certain duties, insubordinate conduct, and use of 
provoking  speech  and  gestures.    The  CO  sentenced  the  applicant  to  reduction  in  pay 
grade to SR/E-1, 45 days of extra duties and restriction to the cutter, and forfeiture of 
one-half pay for two months.  However, the reduction in pay grade and forfeiture were 

                                                 
2  Article  10.B.5.b.4.a.  of  the  Personnel  Manual  requires  that  an  enlisted  member  receive  a  performance 
evaluation whenever he is awarded NJP. 

suspended for four months.  The applicant also received a performance evaluation with 
five marks of 2, five marks of 3, and five marks of 4 in the various performance catego-
ries; an unsatisfactory conduct mark; and a mark of “not recommended” for advance-
ment.    The  page  7s  that  document  the  low  marks  criticize  his  lack  of  respect  for  his 
crewmates and supervisors, his use of foul and disrespectful language, his apathy and 
shirking of duties, the poor quality of his work, and his lack of integrity and honesty. 
 
 
On May 19, 1999, the Executive Officer (XO) of the cutter placed the applicant on 
performance probation for six months.  The applicant was advised that if his perform-
ance did not greatly improve by the end of the period, he would be discharged.3 
 
 
On June 11, 1999, the weapons officer placed a page 7 in the applicant’s record to 
document his not being in proper uniform as the cutter was preparing to moor in Cuba. 
 
 
On June 12, 1999, following an investigation, the CO took the applicant to mast 
for failure to obey an order, dereliction of duty, disrespectful conduct, and lying.  The 
CO sentenced him to 14 days of extra duties.  The applicant also received a performance 
evaluation with two marks of 1, one mark of 2, eight marks of 3, and four marks of 4 in 
the various performance categories; an unsatisfactory conduct mark; and a mark of “not 
recommended” for advancement.  The page 7s documenting the low marks criticize his 
failure to wear the proper uniform on numerous occasions, the poor quality of his work, 
the slowness of his work, and dishonesty.  One states that he “cannot be relied upon to 
do even the simplest of tasks without very close supervision.” 
 
 
On July 8, 1999, the XO, who was Acting CO, informed the applicant in a letter 
that he was initiating his administrative discharge for “unsuitability”4 due to his “dem-
onstrated  inability  to  work  and  perform  in  a  constructive  manner,  poor  attitude,  and 
failure  to  adhere  to  the  Coast  Guard’s  core  values  of  honor,  respect,  and  devotion  to 
duty.”  The XO noted in his letter to the applicant that the type of discharge he would 
receive  “rests  with  Commander  (CGPC-epm-1)”  and  that  he  had  a  right  to  submit  a 
statement  in  his  own  behalf.    The  applicant  acknowledged  the  XO’s  notification  in 
writing, declined to exercise his right to counsel, waived his right to submit a statement 

                                                 
3 Article 12.B.16.b. of the Personnel Manual states that a member may be discharged for unsuitability due 
to “apathy, defective attitudes, and inability to expend effort constructively.”  Article 12.B.16.c. states that 
COs “will not initiate administrative discharge action for inaptitude, apathy, defective attitudes … until 
they  have  afforded  a  member  a  reasonable  probationary  period  to  overcome  these  deficiencies.  When 
commands  contemplate  discharging  a  member  for  these  reasons,  they  shall  counsel  the  member  that  a 
formal  probationary  period  of  at  least  six  months  has  begun  and  make  an  appropriate  Administrative 
Remarks, CG-3307, entry in the member’s [military record] that administrative discharge processing will 
be initiated unless the member shows significant improvement in overcoming the deficiency during the 
probationary period.  The member must acknowledge this entry in writing.” 
4 Article 12.B.16.b. of the Personnel Manual also states that COs “are authorized to recommend discharge 
at any time during probation if the member is not attempting to overcome the deficiency.” 

in his own behalf, and indicated that he did not object to being discharged.5  Also on 
July 8, 1999, the XO sent CGPC his recommendation that the applicant be discharged. 
 
On July 16, 1999, CGPC notified the XO that the applicant should be discharged 
 
with a JNC separation code (for “Unacceptable Conduct”) pursuant to Article 12.B.16. 
of the Personnel Manual no later than August 13, 1999, provided no disciplinary action 
was then pending.  CGPC also ordered that the type of discharge should be honorable 
or  general,6  based  on  the  applicant’s  performance  evaluation  marks,7  in  accordance 
with Articles 12.B.2.f.1. and 12.B.2.f.2. of the Personnel Manual.8 
 
 
On  August  4,  1999,  following  an  investigation,  the XO,  as Acting  CO, took the 
applicant to mast for failing to obey an order by not appearing for his scheduled dis-
charge  physical  examination  on  July  20,  1999.    The  applicant  pled  guilty  and  the  XO 
awarded him 60 days of restriction to the cutter and forfeiture of one-half pay for two 
months.    The  applicant  also  received  a  performance  evaluation  with  very  low  marks, 
including four marks of 1 and six marks of 2.  His final average factor mark for “Profes-
sional Qualities,” such as integrity, human relations, and respecting others, was 2.4.9 
 
 
On  August  5,  1999,  the  applicant  appealed  the  NJP  to  the  Commander  of  the 
Atlantic Area. He stated that although he pled guilty, the punishment was too harsh.10   
He stated that he missed the physical examination because he had to go home due to 

                                                 
5 Article 12.B.16.d. of the Personnel Manual states that before initiating a discharge for unsuitability, a CO 
must “1. Advise the member in writing, using the letter and endorsement described in Article 12.B.9., to 
inform the member of the reason(s) he or she is being considered for discharge. …  2. Afford the member 
the  opportunity  to  make  a  written  statement  on  his  or  her  own  behalf.  …    3.  Afford  the  member  an 
opportunity to consult with a lawyer as defined in Article 27 (b) (1), UCMJ, if the member’s character of 
service warrants a general discharge.” 
6 Article 12.B.16.f. of the Personnel Manual indicates that if the Commander of  CGPC authorizes a dis-
charge for unsuitability, he may direct either an honorable or general discharge. 
7 Article 12.B.2.f.1.d. of the Personnel Manual provides that to receive an honorable discharge a member 
“must  have  a  minimum  characteristic  average  of  2.5  in  each  factor  over  the  period  of  the  enlistment.  
Article 12.B.48.b. contains directions for determining the final characteristic average.” 
8  Article  12.B.2.f.1.a.  lists  all  of  the  reasons  why  a  member  may  be  discharged,  including  unsuitability.  
Article 12.B.2.f.2. states that a “member’s commanding officer or higher authority may effect a separation 
with a general discharge if the member is subject to discharge and a general discharge is warranted under 
the standards prescribed in this paragraph. … A general discharge applies in these situations: … b. The 
member is eligible for discharge for one of the reasons listed in Article 12.B.2.f.1.a. and (1) The member's 
final  average  marks  are  less  than  those  shown  in  …  Article  12.B.2.f.1.d  …  ,  or  (2)  When  based  on  the 
individual’s  overall  military  record  or  the  severity  of  the  incident(s)  which  results  in  discharge,  Com-
mander, (CGPC-epm-1) directs issuing a general discharge.”   
9 Article 12.B.2.f.1.d. of the Personnel Manual provides that to receive an honorable discharge a member 
“must have a minimum characteristic average of 2.5 in each factor over the period of the enlistment.” 
10  Under  Article  1.F.1.  of  the  Military  Justice  Manual,  a  member  may  appeal  his  NJP  “if  he  or  she 
considers  the  punishment  imposed  ‘unjust’  or  ‘disproportionate’  to  the  acts  of  misconduct  for  which 
punished. … The appeal  must be  submitted  in writing  within 5 calendar days  of the imposition of the 
punishment.” 

his mother having had an affair and having been arrested for driving while intoxicated 
and due to his father feeling suicidal.  The applicant stated that 10 to 15 days of restric-
tion would be more just.  The same day, the applicant’s command informed CGPC that 
he could not be discharged on August 13 due to the pending disciplinary action.   
 
 
On August 10, 1999, the CO, who had just returned to the cutter, forwarded the 
applicant’s appeal to the Commander of the Atlantic Area.  The CO stated that before 
going on annual leave on July 15, 1999, the applicant had not informed his supervisors 
of any family problems and told them that he would be present for his discharge physi-
cal on July 20, 1999, as ordered.  Because the Commander of the Atlantic Area failed to 
take action on the applicant’s appeal within five days of the day the applicant submitted 
it,  the  punishment  was  deferred.11    Also  on  August  10,  1999,  CGPC  authorized  the 
applicant’s command to delay his discharge until completion of the disciplinary action. 
 
 
On  August  16,  1999,  the  CO  sought  authority  to  issue  the  applicant  a  general 
discharge  in  accordance  with  Article  12.B.2.f.2.b.(2)12  and  CGPC’s  message  dated  July 
16, 1999.  The CO stated that the applicant met the requirements for a general discharge 
and that his military record documented contempt for the Coast Guard’s core values.  
The command stated that giving the applicant “the privilege of an honorable discharge 
… would demean those who have in fact honorably served.” 
 
 
On  August  24,  1999,  CGPC  replied  that  upon  completion  of  the  disciplinary 
action  and  after  the  applicant  had  been  counseled  by  an  attorney  in  accordance  with 
Article 12.B.16.d.3. of the Personnel Manual,13 the command should issue the applicant 
a general discharge. 
 
 
On August 31, 1999, the applicant signed a statement acknowledging that he had 
been “afforded an opportunity and did, in fact, consult with [name of attorney] of the 
Naval Legal Services Office with regard to my receiving a general discharge from the 
United States Coast guard.” 
 

                                                 
11 Article 1.F.5. provides that a “member who appeals his or her NJP punishment is required to serve any 
punishment  while  the  appeal  is  pending.  If  action  by  the  appeal  authority  is  not  taken  on  the  appeal 
within 5 calendar days after submission,  however, the member may request any unserved punishment 
involving restraint or extra duties be deferred until the action on appeal is taken. Such requests shall be 
granted.”  Article 1.F.6.e.(1) provides that a “punishment that has been deferred pending the decision of 
an  appeal  shall  take  effect  on  the  date  the  member's  commanding  officer  is  advised  of  the  appeal 
decision.” 
12 Article 12.B.2.f.2.b.(2) provides that a member may receive a general discharge “[w]hen based on the 
individual’s  overall  military  record  or  the  severity  of  the  incident(s)  which  results  in  discharge,  Com-
mander, (CGPC-epm-1) directs issuing a general discharge.” 
13  Article  12.B.16.d.3.  states  that  before  initiating  a  discharge  for  unsuitability,  a  CO  must  “[a]fford  the 
member an opportunity to consult with a lawyer as defined in Article 27 (b) (1), UCMJ, if the member’s 
character of service warrants a general discharge.” 

 
On September 3, 1999, the applicant received a general discharge with a narrative 
reason for separation of “Unacceptable Conduct,” a JNC separation code, and an RE-4 
reenlistment code (ineligible), pursuant to Articles 12.B.16. and 12.B.2.f.2. of the Person-
nel Manual. 
 

On  October  20,  2003,  the  Coast  Guard’s  Discharge  Review  Board  denied  the 

applicant’s request for an honorable discharge.   
 

VIEWS OF THE COAST GUARD 

 

On May 23, 2005, the Judge Advocate General (JAG) of the Coast Guard submit-
ted an advisory opinion recommending that the Board deny the applicant’s request for 
lack of merit.   

 
The JAG alleged that the applicant’s arguments about why his discharge should 
be upgraded are “flawed in a variety of respects.”  The JAG stated that there is no evi-
dence that the applicant was ever promised an honorable discharge as he alleged.  The 
JAG  pointed  out  that  on  July  16,  1999,  CGPC  authorized  the  command  to  award  the 
applicant the type of discharge warranted by his performance marks.  The JAG stated 
that while this discharge was pending, the applicant committed further misconduct by 
skipping  his  discharge  physical  examination,  which  caused  his  command  to  request 
permission to discharge him for misconduct.   

 
The JAG pointed out that the applicant admitted his offense at mast on August 4, 
1999, and appealed only the severity of his sentence.  The JAG stated that the failure of 
the  Commander  of  the  Atlantic  Area  to  take  action  of  the  applicant’s  appeal  did  not 
“reverse” the NJP but merely suspended it.  The JAG stated that the Coast Guard can-
not produce a copy of the response of the Commander of the Atlantic Area to the appli-
cant’s appeal because in accordance with Article 1.G.4. of the Military Justice Manual, 
such  records  are  only  retained  for  four  years.    The  JAG  pointed  out  that  because  the 
mast sentence was suspended and never enforced, the applicant received less punish-
ment than even he himself requested in his appeal.  The JAG stated that there is no evi-
dence  that  the  applicant’s  final  NJP  was  ever  invalidated.    He  stated  that  the  general 
discharge “was based on a continuing pattern of misconduct of which the events lead-
ing to his NJP of 04 August were only a part” and “the latest example” of his miscon-
duct.  The general discharge was not part of the sentence of the  August 4 mast.  The 
JAG stated that even if the Commander of the Atlantic Area had reduced the sentence 
in response to the applicant’s appeal, “that decision would not have affected the charac-
terization of Applicant’s discharge at all.” 

 
The  JAG  further  pointed  out  that,  contrary  to  the  applicant’s  allegation,  his 
record contains documentation of his having been afforded “the due process rights to 
which he was entitled,” including an opportunity to consult with an attorney about his 

general discharge on August 31, 1999.  The JAG stated that “[a]lthough reprehensible, 
Applicant’s  lack  of  candor  [about  this  consultation]  is  not  surprising  considering  the 
numerous examples of Applicant’s lack of integrity documented throughout his service 
record.” 

 
The  JAG  concluded  that  the  applicant  failed  to  overcome  the  presumption  of 

regularity and to prove that his general discharge is erroneous or unjust. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On May 31, 2004, the applicant responded to the JAG’s advisory opinion.  The 
applicant stated that even though the NJP of August 4, 1999, was not “reversed,” it was 
still deferred and went away.  Therefore, he argued, his general discharge should have 
been deferred and gone away too.   
 
 
The  applicant  alleged that  when  he  sought and  received  a  copy of  his  military 
record from the National Archives, it did not contain any documentation of a consulta-
tion with an attorney dated August 31, 1999.  The applicant also alleged that he did not 
receive a copy of the letter dated July 8, 1999, wherein his XO informed him that the 
type of discharge he received would be determined by CGPC. 
 
 
The applicant argued that the Coast Guard should not receive a presumption of 
regularity since, on his cutter, a married engineering officer “was kicked out for having 
sex with a hooker”; two firemen “were kicked out for smoking marijuana on the fan-
tail”; and a second class petty officer was “kicked out for drilling a peephole through 
the wall of the crew lounge into the women’s shower.”  He stated that “the Coast Guard 
has about as much honor as a bag of Doritos.” 
 
 
Regarding  the  character  of  his  discharge,  the  applicant  stated  that  in  July  his 
department head told him to “be cool and don’t get in trouble and you’ll get an honor-
able discharge.” 
 

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 appli-
cable law: 
 

1. 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 
§ 1552.  An application to the Board must be filed within three years after the applicant 
discovered  or  reasonably  should  have  discovered  the  alleged  error  in  his  record.14 

                                                 
14 10 U.S.C. § 1552; 33 C.F.R. § 52.22. 

Although  the  applicant  filed  his  application  more  than  three  years  after  he  knew  or 
should have known that he received a general discharge, he filed it within three years of 
having  timely  filed  an  application  with  the  DRB,  which  has  a  fifteen-year  statute  of 
limitations.  Therefore, the applicant has exhausted his administrative remedies and his 
application is considered timely.15  

 
2. 

The applicant alleged that he received a general discharge on September 3, 
1999, as a result of the mast on August 4, 1999, and that because the rest of his sentence 
was “reversed,” he should have received an honorable discharge.  However, the appli-
cant’s general discharge was not part of his sentence at mast.  In accordance with Article 
15 of the UCMJ, the maximum punishment a CO may impose at mast is confinement on 
bread and water for not more than 3 days; correctional custody for not more than 30 
days; reduction in pay grade; forfeiture of not more than one-half the member’s pay for 
2 months; extra duties for up to 45 days; and restriction to specified limits for not more 
than 60 days.  A CO may not impose any discharge at mast.  Moreover, the applicant’s 
military  records  show  that  his  discharge  was  effected  administratively  under  Article 
12.B.16. of the Personnel Manual, rather than punitively under the UCMJ. 

 
3. 

The  applicant  alleged  that  when  CGPC  approved  his  general  discharge, 
CGPC was unaware that his NJP had been “reversed” and that had CGPC known of the 
reversal, he would have received an honorable discharge.  As evidence, the applicant 
cited  CGPC’s  message  dated  August  24,  1999,  in  which  CGPC  indicated  that  upon 
completion of the disciplinary action (NJP) and after the applicant had been counseled 
by an attorney, the command should issue the applicant a general discharge. 
 

4. 

There  is  no  evidence  in  the  record  that  the  applicant’s  NJP  was 
“reversed.”  Under Article 1.F.5. of the Military Justice Manual, if an appeal authority 
fails  to  take  action  on  a  mast  appeal  within  five  days,  the  punishment  is  deferred 
(delayed) until the appeal authority does take action.  Therefore, CGPC’s message dated 
August  24,  1999,  was  correct  in  indicating  that  the  disciplinary  action  was  not  yet 
complete because on that day the applicant’s appeal was still pending since the appeal 
authority had not yet acted.  The applicant has not proved that CGPC was under any 
misconception  as  to  the  status  of  his  NJP  when  it  approved  the  proposed  general 
discharge on August 24, 1999. 

 
5. 

CGPC’s message dated August 24, 1999, authorized the command to issue 
the applicant a general discharge upon completion of the disciplinary action (NJP) and 
after  affording  the  applicant  an  opportunity  to  consult  an  attorney.    The  applicant 
alleged  that  the  Coast  Guard  denied  him  his  right  to  counsel.    However,  his  military 
records show that he was offered counsel on two occasions:  First on July 8, 1999, when 
he  acknowledged  by  signature  the  XO’s  notification  of  the  proposed  discharge  and 

                                                 
15 33 C.F.R. § 52.13(b); Ortiz v. Sec’y of Defense, 41 F.3d 738, 743 (D.C.C. 1994). 

affirmatively  declined  his  right  to  consult  counsel;  and  second  on  August  31,  1999, 
when he signed a statement acknowledging that he had been “afforded an opportunity 
and did, in fact, consult with [name of attorney] of the Naval Legal Services Office with 
regard to my receiving a general discharge from the United States Coast guard.”  The 
applicant’s military records also show that he was advised of the reason he was being 
discharged and afforded an opportunity to submit a statement in his own behalf.  The 
applicant has not proved that he was denied any due process with respect to his general 
discharge pursuant to Article 12.B.16.d. of the Personnel Manual. 

 
6. 

The  record  is  unclear  as  to  how  the  disciplinary  action  was  completed 
prior to the applicant’s discharge on September 3, 1999.  The applicant alleged that the 
sentence was overturned because he later received money that had been withheld as a 
result of the NJP and did not serve the 60 days of restriction.  The JAG has stated that 
the Coast Guard cannot produce a copy of the appeal authority’s response to the appli-
cant’s appeal because in accordance with Article 1.G.4. of the Military Justice Manual, 
such  records  are retained  for only  four  years.    Since  the  applicant  was  discharged  on 
September  3,  1999,  it  may  be  that  to  expedite  the  applicant’s  discharge,  the  appeal 
authority set aside the sentence even though the applicant pled guilty. 

 
7. 

The  applicant  argued  in  effect  that  if  CGPC  had  known  that  his  most 
recent sentence would not be enforced, CGPC would not have authorized the general 
discharge.  However, CGPC’s message of August 24, 1999, shows that CGPC was aware 
that the applicant’s appeal was still pending and the outcome still unknown.  Therefore, 
CGPC clearly approved the general discharge, pursuant to Article 12.B.2.f.1.d.(d) of the 
Personnel Manual, on the basis of the CO’s recommendation and the applicant’s prior 
record  of  frequent  misconduct  and  poor  effort  and  attitude.    The  applicant  has  not 
proved that the Coast Guard committed any error in issuing him a general discharge. 

 
8. 

 
The  applicant  alleged  that  when  he  was  advised  of  the  proposed  dis-
charge on July 8, 1999, he was told that he would get an honorable discharge if he did 
not get into further trouble.  However, at mast on August 4, 1999, the applicant admit-
ted that he intentionally disobeyed an order by skipping his discharge physical exami-
nation,  which  had  been  scheduled  for  July  20,  1999.    In  light  of  this  incident  and  the 
applicant’s overall very poor performance, the Board finds that he has not proved that 
his general discharge was unjust in any way.16  

 
9. 

 

 

Accordingly, the applicant’s request should be denied.   

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

                                                 
16 “Injustice” is “treatment by the military authorities that shocks the sense of justice, but is not technically 
illegal.”  Reale  v.  United  States,  208  Ct.  Cl.  1010,1011  (1976);  Decision  of  the  Deputy  General  Counsel, 
BCMR Docket No. 2001-043. 

 
 

ORDER 

 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of 

his military record is denied. 
 

 
 

 
 

 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

        

 
 Frank H. Esposito 

 

 

 
 Randall J. Kaplan 

 

 

 
 Dorothy J. Ulmer