DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-105 
 
XXXXXXXXXXXXXX 
xxxxxxxxxxxxxxxx SA (former)  
   

 

 
 

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  May  9,  2005,  upon  receipt  of  the  applicant’s  completed  application  and 
military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  February  28,  2006,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  upgrading  his 
bad conduct discharge (BCD).  The applicant was discharged from the Coast Guard in 
1949.  He stated that he was never given an opportunity to explain the absence without 
leave offenses that led to his General Courts-martial (GCM) and subsequent BCD.  In a 
letter attached to his application, he provided the following explanation: 
 

My  actions  that  led  up  to  my  discharge  are  my  first  born  child  in  June 
1949  was  born  at  Newport  Naval  Hospital  .  .  .  She  was  born  with  a 
combination "hare lip" and "cleft palate."  No one wanted to help her until 
she was 7 years old.  So being young and stupid, I started going AWOL to 
get someone mad at me, well it went to extremes.  I ended up with a BCD.  
We  moved  .  .  .  My  daughter  got  all  her  operations  and  treatment  and 
today is a wonderful lady with two daughters of her own.  I just thought, 

I'm 79 years old it would be a shame to eventually die and have this on 
my record.  As I said it was a stupid mistake and all I can say is I'm sorry.   
 

 

SUMMARY OF THE RECORD AND SUBMISSIONS 

The applicant enlisted in the Coast Guard on February 2, 1949.   

 
 
 
 
On August 10, 1949, the applicant  was  convicted at summary court-martial for 
absence  over  leave  from  May  22,  1949  to  June  11,  1949.    He  was  sentenced  to 
deprivation  of  liberty for  two  months  and  to  perform  100  hours of  extra  duties.    The 
deprivation of liberty was mitigated to 30 days by the convening authority.  
 
 
The applicant was absent without authority from August 12, 1949 until August 
15,  1949,  having  failed  to  returned  from  special  liberty  granted  by  the  commanding 
officer.  The applicant's enlistment was extended for three days to cover time lost.   
 
 
On December 23, 1949, the applicant was convicted at a GCM in accordance with 
his pleas of two specifications of absence over leave from October 7, 1949 to October 18, 
1949  and  from  November  2,  1949  to  November  16,  1949.    He  was  sentenced  to  a 
dishonorable discharge, which was mitigated to a BCD by the convening authority.   
 
 
The applicant was discharged with a BCD on January 3, 1950.  Upon discharge, 
his average performance marks were 1.25 in "performance in rate" and 2.16 in "conduct" 
measured on a scale of 1 to 4, with 4 being the highest mark.     
 

VIEWS OF THE COAST GUARD 

 
 
On  October  5,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted an advisory opinion recommending that the Board grant partial relief to the 
applicant by upgrading the BCD to a general discharge under honorable conditions.   
 
 
The  JAG  stated  that  although  the  application  was  submitted  well  beyond  the 
time limit, the circumstances appear to be a rare case where the BCD, while legal and 
authorized at the time adjudged, may be considered an injustice.   He noted that 10 USC 
1552(f)  prohibits  the  BCMRs  from  removing  convictions  from  military  records,  but 
recognized that it may act under its clemency powers to change a sentence.  He argued 
that  the  Board's  clemency  power  should  be  reserved  for  those  unusual  cases  where 
unanticipated  circumstances  cause  the  lawful  sentence  of  a  court-martial  to  have  an 
effect that shocks the conscience or conflicts with notions of fundamental fairness. He 
asserted  that  the  Board  should  not  consider  clemency  unless  there  are  compelling 
reasons for doing so.  In this regard, the JAG stated that the Attorney General suggests 
that a Board must consider whether it can more fairly determine the equities in a case 

than the court marital that originally imposed the sentence.  See e.g. 40 Op. Atty. Gen 
504 (February 24, 1947).   
 
The  JAG  stated  that  this  application  is  one  of  those  extraordinary  cases  where 
 
there  are  compelling reasons  to  consider  clemency.    He  offered  the  following  reasons 
for granting clemency: 
 

 
(1)  Applicant  was  tried  under  the  disciplinary  laws  of  the  Coast 
Guard  and  the  punishment  awarded  at  the  court-martial  in  issue  -  a 
dishonorable discharge that was later reduced to a bad conduct discharge 
- was lawful . . .   
 
 
(2)  Shortly  after  applicant's  court-martial  Congress  passed  the 
UCMJ.    On  February  8,  1951,  the  President  published  the  Manual  for 
Courts-Martial, which became effective  with respect to all courts-martial 
on and after May 31, 1951.  A punitive discharge would not have been an 
authorized  punishment  for  applicant's  offenses  under  the  Manual  for 
Courts-Martial  1951.    Therefore,  the  extraordinary  use  of  the  Board's 
authority to provide clemency is appropriate.   

Attached to the advisory opinion as Enclosure (1) were comments from CGPC, 

 
 
who offered the following: 
 

Under current Coast Guard separation policies, it is highly unlikely that 
two similar events, absent other patterns of misconduct, would lead to a 
member's separation with a [BCD].  In considering the applicant's petition 
under 33 CFR Chapter 1 § 51.7 [the Discharge Review Board regulation], 
equity  standard  of  review      .  .  .  I  find  that  the  policies  and  procedures 
under which the applicant was discharged may differ in material respects 
from policies and procedures currently applicable on a service-wide basis 
to  discharges  of  that  type.    A  person  currently  tried  at  General  Court-
Martial cannot be punished with a [DD] or [BCD] for the same charge.   
 

  * 

 

* 

 

* 

 
Under  33  CFR  Chapter  1  §  51.7,  Equity  Standard  of  review,  I  believe  it 
would be fair and equitable to upgrade the Applicant's discharge.  I find 
that the applicant's discharge from the Service with a [BCD] for fifty-five 
years is adequate punishment for his offense.   
 
However,  the  records  indicate  that  the  applicant  does  not  meet  the 
minimum  characteristic  average  required  to  receive  an  honorable 
discharge.    A  General  Discharge-Under  Honorable  Conditions  would 

more  accurately  reflect  the  Applicant's  record  in  that  the  Applicant 
performed honorably in some aspects of his service, but also reflects that 
he engaged in serious misconduct, which brought discredit to him and the 
Service.   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On October 14, 2005, the BCMR received the applicant's reply to the views of the 
Coast Guard.  He stated that he had no objection to the Coast Guard's recommendation.   
 

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 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 53 years beyond the statute of limitations.   
 

 3.  However, the Board may still consider the application on the merits, if it finds 
it is in the interest of justice to do so. In Allen v. Card, 799 F.  Supp. 158, 164 (D.D.C. 
1992), the court stated that in assessing whether the interest of justice supports a waiver 
of the statute of limitations, the Board "should analyze both the reasons for the delay 
and  the  potential  merits  of  the  claim  based  on  a  cursory  review."    The  court  further 
stated that "the longer the delay has been and the weaker the reasons are for the delay, 
the more compelling the merits would need to be to justify a full review."  Id. at 164, 
165.   See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995). 
 
3.  Although this application was submitted to the Board well after the expiration 
 
of the three-year statute of limitations, the Board finds that it is in the interest of justice 
to waive the statute of limitations in this case.  The Board is persuaded in this finding by 
the recommendation for relief by the JAG, who noted that under today's standards two 
relatively minor unauthorized absences, like the applicant's, would not cause a member 
to  receive  a  BCD.    Therefore,  as  a  matter  of  equity,  the  JAG  recommended  that  the 
applicant be granted relief.  
 
 
4.    With  respect  to  the  merits  of  his  claim,  the  Board  having  reviewed  the 
applicant's military record is satisfied that his misconduct while in the Coast Guard was 

limited to short periods of unauthorized absences. Therefore, the Board finds that based 
on  the  JAG's  conclusion,  as  verified  by  the  table  of  punishments  in  the  Manual  for 
Courts Martial (2002), such short unauthorized absences would not result in a less than 
honorable discharge under today's standards.  Therefore, it is in the interest of justice to 
correct  the  applicant's  record  to  show  that  he  was  discharged  from  the  Coast  Guard 
with  a  general  discharge  under  honorable  conditions  in  1950.    Moreover,  there  is  no 
evidence in the record that the applicant has engaged in misconduct since his discharge 
from the Coast Guard.     
 

5.  The applicant is not eligible for an honorable discharge, however, because his 
average performance marks  (1.25 in "performance in rate" and 2.16 in "conduct") over 
the  period  of  his  enlistment  do  not  meet  the  minimum  required  average  marks  that 
would entitle him to an honorable discharge.   Under Article 12.B.2.f. of the Personnel 
Manual in effect at that time of the applicant's discharge, an average mark of 2.5 in each 
performance factor was required for an honorable discharge.  In addition, the applicant 
indicated that he had no objection to the Coast Guard's recommendation in his case that 
he receive a general discharge under honorable conditions. 
 
 
 
 

6.  Accordingly, the Board finds that the applicant is entitled to partial relief.   

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 

ORDER 

 

The application of former SA xxxxxxxxxxxxxxxxxxxxxxx USCG, for correction of 
his military record is granted.  The applicant's record, including his DD Form 214, shall 
be  corrected  to  show  that  he  was  discharged  from  the  Coast  Guard  with  a  general 
discharge under honorable conditions.   
 
 
 
 
 
 
 
 
 
 
 

 
Dorothy J. Ulmer 

 
 

        

 
 
Julia Andrews 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 
 

 

 

 

 

 
 

 
 
 

 
 

 
 
 

 
 

 
 
 

 
 

 
 
 

 
 

 
 
 

 
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*Pursuant to 33 C.F.R. § 52.11(b), two designated members constitute a quorum of the 
Board.