DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-107 
 
Xxxxxxxxxxxxxxxxxxxxxxxxxx 
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FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 

This proceeding was conducted under 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 
May  17,  2005,  upon  the  Board’s  receipt  of  the  completed  application  and  military 
records. 
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated March 8, 2006, is signed by the three duly appointed 

 

REQUEST FOR CORRECTION 

The applicant is a deceased veteran of World War II who received a bad conduct 
discharge (BCD) on January 9, 1946, pursuant to the sentence of a general court-martial.  
The application was submitted by the applicant’s daughter, who  submitted a copy of 
her  father’s  death  certificate  to  prove  her  standing  in  accordance  with  33 C.F.R. 
§ 52.21(b).  She stated that she did not learn the character of his discharge until after he 
died on December 31, 1993.  She stated that her father received several awards while in 
the  service  and  that  she  believes  that  the  character  of  his  discharge  was  unjust.    She 
stated that when she was a child, her family visited Washington, D.C., several times and 
that  her  mother  recently  informed  her  that  the  visits  were  pursuant  to  her  father’s 
unsuccessful attempts to have his discharge upgraded.1 
 

SUMMARY OF THE RECORD  

 
                                                 
1  The applicant  may have  applied to the Discharge  Review Board.  A review of the BCMR’s historical 
files did not reveal any prior applications by the applicant to this Board. 

 
On July 30, 1943, eighteen days shy of his 18th birthday, the applicant enlisted in 
the  Coast  Guard  Reserve  for  three  years.    He  had  completed  only  one  year  of  high 
school.  On August 15, 1944, while the nation was still at war in Europe and the Pacific, 
the applicant missed the sailing of his ship, the USS Lansing.  A seaman first class, he 
had been on leave prior to the sailing and failed to return when his leave ended.  The 
USS Lansing was a destroyer escort employed in protecting convoys across the Atlantic 
Ocean to North Africa. 
 

The applicant was reported as a deserter, but on September 13, 1944, he surren-
dered himself in New York after having been “absent over leave” (AOL) for 29 days.  
On  September  16,  1944,  at  a  report  mast,  the  applicant’s  commanding  officer  deter-
mined that his offenses should be tried at a General Court-Martial (GCM).  On Septem-
ber 30, 1944, the applicant was transferred to the disciplinary barracks on Hart’s Island, 
in Long Island Sound near the Bronx. 
 
 
At trial on October 6, 1944, the applicant pled guilty to one specification of being 
absent over leave for 29 days.  The fact that he also missed ship’s movement is noted 
after  the  charge  parenthetically.    At  trial,  the  applicant  stated  that  while  he  was  on 
leave, his brother had injured a leg in a car accident and that his own testimony was 
necessary  to  get  a  settlement  for  his  brother.    He  was  found  guilty  and  sentenced  to 
reduction in rate to seaman apprentice and confinement for nine months to be followed 
by separation with a BCD.  None of the members of the court recommended clemency. 
 

On  October  13,  1944,  the  Convening  Authority  approved  the  proceedings  but 
mitigated the sentence so that the BCD would be remitted “on the condition that during 
confinement and for a period of six (6) months thereafter [the applicant] conducts him-
self in such manner as, in the opinion of his commanding officer, warrants his retention 
in  the  service,  otherwise  he  shall  be  discharged  from  the  service  by  his  commanding 
officer in accordance with the terms of his sentence at the expiration of the period of his 
confinement,  or  at  any  subsequent  time  during  the  period  of  probation.”    He  recom-
mended that the applicant continue to be confined at Hart’s Island.  Also on October 13, 
1944, the disciplinary barracks noted that the applicant was expected to be “confined for 
4 mos.,” in apparent anticipation of further mitigation of the sentence. 
 
 
On November 9, 1944, the applicant was taken to mast for attempting to escape 
from the disciplinary barracks on Harts Island.  The commanding officer sentenced him 
to “lose three (3) mos. good time.” 
 

On November 10, 1944, the Assistant Commandant of the Coast Guard forward-
ed  the  applicant’s  case  to  the  Navy2  for  review  with  a  recommendation  that  “if  [the 
                                                 
2 During World War II, the Coast Guard functioned under the auspices of the Navy, pursuant to 14 U.S.C. 
§§ 1, 3, until December 31, 1945.  On January 1, 1946, the Coast Guard reverted to the Department of the 
Treasury and operated under its own rules.  Executive Order No. 9666, December 28, 1945. 

applicant’s] conduct so warrants at the end of the first four (4) months of confinement, 
he be restored to duty with the unexecuted portion of the Sentence conditionally remit-
ted subject to the satisfactory completion of six (6) months’ probationary period.”   
 
 
On November 15, 1944, the applicant was transferred to disciplinary barracks at 
Camp  Peary,  Virginia,  “for  further  confinement.”    He  remained  confined  there  until 
July 12, 1945. 
 

On  November  29,  1944,  the  Secretary  of  the  Navy  mitigated  the  sentence  in 

accordance with the recommendation of the Assistant Commandant.   
 
 
On  June  2,  1945,  the  applicant  began  a  “retraining  camp”  at  Camp  Peary.    On 
July  12,  1945,  he  was  released  upon  completion  of  nine  months  of  confinement  and 
returned  to  duty  on  six  months’  probation  “subject  to  the  execution  of  a  BCD.”    The 
applicant’s Certificate of Retraining notes that he had received an average grade of 3.5 
during his retraining and had been “a good worker.  He got along well with his mates.”  
The Certificate of Retraining bears a scale of “Conduct During Confinement” with the 
choices  Fair,  Satisfactory,  Good,  Very  Good,  Excellent,  and  Outstanding.    The  appli-
cant’s conduct was rated as Satisfactory. 
 
 
On December 17, 1945, the applicant was absent without leave (AWOL) from his 
unit,  the  USCGC  Nourmahal.    His  commanding  officer  noted  in  the  applicant’s  record 
that he was on probation and subject to the execution of the BCD pursuant to the sen-
tence of the GCM.   
 

On December 20, 1945, the applicant surrendered himself.  His commanding offi-
cer confined him to the brig and requested authority from the Commandant “to execute 
the unexecuted portion” of the applicant’s sentence because he had gone AWOL during 
his probationary period.  The Commandant approved the request on January 4, 1946. 
 
On January 9, 1946, the applicant was released from the brig and separated with 
 
a BCD pursuant to the sentence of the GCM because he had not met the terms of his 
probation.  Upon his discharge, the applicant’s final average marks were 2.65 for profi-
ciency in rating and 3.41 for conduct.  He had completed 1 year, 6 months, and 9 days of 
creditable service, including approximately 1 year and 2 months of sea service on five 
different  ships.    His  was  entitled  to  wear  the  American  Area  Ribbon,  the  European-
African-Middle Eastern Area Ribbon, and the World War II Victory Ribbon. 
 

 

VIEWS OF THE COAST GUARD 

 
On October 5, 2005, the Judge Advocate General (JAG) of the Coast Guard sub-
 
mitted an advisory opinion in which he recommended granting relief.  He based this 

recommendation  on  a  memorandum  on  the  case  from  the  Commander  of  the  Coast 
Guard Personnel Command (CGPC), which the JAG adopted. 
 
CGPC  stated  that  the  Board  should  waive  the  statute  of  limitations  because, 
 
CGPC alleged, there is a basis for relief in the record.  CGPC noted that the sentence 
received by the applicant is in accordance with the policies and procedures at the time, 
which “do not differ in material respects from policies and procedures currently appli-
cable.  …  A  person  currently  tried  at  General  Court-Martial  may  be  separated  with  a 
Bad Conduct discharge for a similar charge of Missing Movement.”  CGPC also stated 
the following: 
 

On November 29, 1944, the Secretary of the Navy concurred with the recommendation of 
the Commandant and mitigated the Applicant’s sentence to four (4) months of confine-
ment,  provided  the  Applicant  conducted  himself  in  a  manner  satisfactory  to  his  com-
manding officer at which time the Applicant would be released on probation for a period 
of six (6) months.  The Applicant’s record shows that the Applicant was not released after 
four  (4)  months  of  confinement.    The  Applicant  was  released  after  completing  nine  (9) 
months  in  confinement.    There  is  no  record  justifying  the  Applicant’s  extended  confinement.  
The Applicant’s Certificate of Retraining, which documents his performance during con-
finement, reflects that the Applicant was, at minimum, a satisfactory performer.  In addi-
tion to having good to excellent marks, it is noted that “this man was a good worker.  He 
got along well with his mates.”  [Emphasis added.] 
 
Had the Applicant’s sentence been properly carried out, the Applicant would  not  have 
been on probation at the time of the second incident and may not have been separated 
with a Bad Conduct Discharge.  It is also plausible that the incident could have been com-
pletely avoided had the sentence been properly executed.  In light of this error, I find that 
it would be unjust to presume that the Applicant’s separation was just and within Coast 
Guard regulations at the time of his separation. 

RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On November 4, 2005, the applicant’s daughter responded to the advisory opin-

 
 
ion by stating that she agreed with them. 
 

In  response  to  further  inquiry  by the  BCMR  staff  about  the  basis  for  her  belief 
that  the  BCD  was  unjust,  which  was  not  explained  in  the  application,  the  applicant’s 
daughter stated that his commanding officer had promised him that “if he maintained 
good behavior, he would receive an honorable discharge.  The date led up to approxi-
mately 4 days prior to his discharge.”  She stated that her mother told her that her father 
had been “pushed out of the military due to the fact that WWII was over and they were 
getting rid of men any way they could.”  She further stated that as a former member of 
the Coast Guard herself, she wants “to be able to go to my father’s grave and put a flag 
upon it with pride to know that I was able to overturn this for him.” 
 

APPLICABLE LAW 

 

Article 459 of the Personnel Instructions in effect in 1946 provided that “[u]pon 
separation from the Coast guard for any reason other than death, an enlisted man shall 
be entitled to receive a discharge, the character of which shall be determined by the rea-
son for discharge and/or the character of service rendered during his period of enlist-
ment.” 
 
Under Article 4952(1) and (2), members could receive an honorable discharge if  
 

(a) they had a final average proficiency in rating mark of “not less than 2.75” and a final 

average conduct mark of at least 3.0; 

(b) they were “[n]ever convicted by general Coast Guard court or more than once by a 
summary Coast Guard court, or more than twice by a Coast Guard deck court”; and 
(c) they  were  being  discharged  for  one  of  the  following  reasons:  expiration  of  enlist-
ment, convenience of the government, minority, hardship, or physical or mental dis-
ability not the result of own misconduct. 

 
Members  being  discharged  for  the  reasons  listed  in  paragraph  (c)  above  could 
receive a general discharge under honorable conditions if their marks did not meet the 
minimums required for an honorable discharge or if they had been convicted once by a 
General  Court  Martial,  twice  or  more  by  a  Summary  Court-Martial,  or  at  least  three 
times by a deck court. 

 
Under Article 4952(6), a member could receive a BCD if he was “[d]ischarged in 
accordance with the approved sentence of a general or summary Coast Guard court, as 
mitigated.” 

 
 
Article 12.B.2.f.1.c. of the current Personnel Manual states that, to receive an hon-
orable discharge prior to 1983, a “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 submissions, and appli-
cable law: 
 

1. 

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

§ 1552. 
 
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(b).  The applicant 

received his BCD on January 9, 1946.  Thus, the application was untimely by more than 
50 years.   

 
3. 

Pursuant to 10 U.S.C. § 1552(b), the Board may excuse the untimeliness of 
an application if 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 to determine whether the interest of justice sup-
ports 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 instructed 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.”3  A cursory review of the merits of this case indicates a reasonable possibility 
that the claim has substantive merit, and there is some excuse for delay given the appli-
cant’s youth and lack of education at the time of his BCD.  Furthermore, the JAG and 
CGPC have not asked the Board to deny the claim on the basis of the statute of limita-
tions; rather, they have recommended that the Board grant the requested relief.  There-
fore, although the application is more than 50 years late, the Board finds that it is in the 
interest of justice to excuse its untimeliness and consider it on its merits. 

  
4. 

On October 6, 1944, the applicant was convicted by a GCM of being absent 
over leave for 29 days, during which he missed his ship’s movement.  He was sentenced 
to reduction in rate to seaman apprentice and confinement for nine months to be fol-
lowed by a BCD.  This Board does not have the authority to overturn a conviction by 
court-martial but it may grant clemency on the sentence of a court-martial.  10 U.S.C. 
§ 1552(f)(2). 

 
5. 

On October 13, 1944, the Convening Authority approved the proceedings 
but mitigated the sentence so that, if the applicant’s  behavior was satisfactory during 
his first six months of confinement, he would be released at the end of six months and 
returned to duty on a further six months of probation.  In addition, if his behavior was 
satisfactory, he could be retained on active duty, but if not, “he shall be discharged from 
the service by his commanding officer in accordance with the terms of his sentence at 
the expiration of the period of his confinement, or at any subsequent time during the 
period of probation.”  The Convening Authority designated Hart’s Island as the place of 
confinement.  The command at Hart’s Island noted on October 13, 1944, that the appli-
cant was to be confined for four months in apparent anticipation of further mitigation of 
the sentence.  As the Coast Guard was then under the aegis of the Navy, on November 
10,  1944,  the  Assistant  Commandant  forwarded  the  case  to the  Secretary  of the  Navy 
with a recommendation that, if the applicant’s behavior was satisfactory during the first 
four months of his confinement, he be released at the end of four months and returned 
to duty on six months of probation, subject to execution of the BCD.  On November 29, 

                                                 
3 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992); see also Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995). 

6. 

7. 

1944, the Secretary of the Navy mitigated the applicant’s sentence  in accordance with 
that recommendation. 
 
The  record  shows  that  the  applicant’s  behavior  during  his  first  four 
 
months  was  not  satisfactory.   On  November  9,  1944,  he  was  found  guilty  at  mast  for 
attempting  to  escape  from  the  disciplinary  barracks  on  Hart’s  Island.    Therefore,  on 
November 15, 1944, he was transferred to Camp Peary in Virginia “for further confine-
ment.”  If the applicant had not attempted to escape, he would have been kept at Hart’s 
Island and eligible for release from confinement on February 12, 1945, at the end of four 
months, and his probationary period would have ended on August 12, 1945.   
 
 
In reviewing the record, CGPC did not mention the applicant’s attempted 
escape  during  his  first  four  months  of  confinement,  and  alleged  that  “[t]here  is  no 
record  justifying  the  Applicant’s  extended  confinement.”    However,  the  applicant’s 
transfer to Camp Peary “for further confinement” on November 15, 1944, just six days 
after his conviction at mast for attempted escape, indicates that his commanding officer 
determined  that  the  applicant  had  not  met  the  satisfactory  behavior  requirement  for 
release at the end of four months.  Therefore, the applicant was confined for the entire 
nine months of his original sentence.  Because of the applicant’s conviction at mast for 
attempted escape during his first four months of confinement, the Board disagrees with 
the Coast Guard’s finding that the applicant’s confinement for nine months was not jus-
tified by any record of misbehavior.  The applicant attempted to escape during the first 
four months of confinement and so did not meet the condition for early release under 
his mitigated sentence. 
 
 
The  Convening  Authority  held  that  the  applicant  could  be  retained  to 
complete his enlistment if he “conducts himself in such manner as, in the opinion of his 
commanding  officer,  warrants  his  retention  in  the  service,  otherwise  he  shall  be  dis-
charged from the service by his commanding officer in accordance with the terms of his 
sentence at the expiration of the period of his confinement, or at any subsequent time during the 
period of probation.”  [Emphasis added.]  Because the applicant did not meet the condi-
tion  for  early  release  under  his  mitigated  sentence,  the  Coast  Guard  could  have  dis-
charged him with a BCD on July 12, 1945.  Instead, the Coast Guard returned the appli-
cant to active duty on six months’ probation “subject to execution of a BCD.”  Therefore, 
if  the  applicant’s  behavior  had  been  satisfactory  to  his  commanding  officer  through 
February  12,  1946,  he  would  no  longer  have  been  subject  to  the  BCD.    However,  the 
applicant went AWOL for four days, from December 17 through 20, 1945. 
 

8. 

9. 

Because the applicant went AWOL in December 1945, he did not meet the 
terms of his probation and was subject to the BCD in accordance with his sentence as 
mitigated.    After  he  surrendered  on  December  20,  1945,  his  commanding  officer  con-
fined him to a brig and requested and received authority to execute the BCD.  On Janu-
ary 9, 1946, the applicant received a BCD in accordance with his GCM sentence as miti-

gated and Article 4952(6) of the Personnel Instruction then in effect.  Given the facts of 
this  case,  the  Board  finds  that  the  Coast  Guard  committed  no  error  in  executing  the 
BCD. 
 

10. 

 Under  10  U.S.C.  § 1552(a),  the  Board  may  “remove  an  injustice”  from  a 
veteran’s record, as well as correct an error in the record.  The Board has authority to 
determine whether an injustice has been committed on a case by case basis.4  Therefore, 
although the Coast Guard committed no error in separating the applicant with a BCD, 
the  Board  must  consider  whether  the  applicant’s  BCD  constitutes  an  injustice.    With 
respect to upgrading discharges, the General Counsel of the Department of Transporta-
tion informed the BCMR on July 7, 1976, that it “should not upgrade a discharge unless 
it is convinced, after having considered all the evidence … that in light of today’s stan-
dards the discharge was disproportionately severe vis-à-vis the conduct in response to 
which it was imposed.”  The Board does not, however, construe this standard as pro-
hibiting it from exercising clemency in court-martial cases under 10 U.S.C. § 1552(a) and 
(f), even if the discharge was neither disproportionately severe compared to the miscon-
duct, nor clearly inconsistent with today’s Coast Guard standards.  Such a construction 
would  be  inconsistent  with  the  very  nature  of  “clemency,”  which  means  “kindness, 
mercy,  leniency.”5      Clemency  does  not  necessarily  require  that  a sentence  have  been 
unjust or wrong; on the contrary, it can be (and often is) forgiveness of punishment that 
is  otherwise  appropriate.    In  particular,  the  line  of  cases  cited  in  footnote  13,  infra,  is 
based more on the exercise of the Board’s clemency authority, which is part of its gen-
eral authority to correct injustice in military records, than on the strict application of the 
1976  guidance,  although  the  decisions  do  not  typically  discuss  this  distinction.    An 
analysis under the 1976 guidance primarily considers whether the past discharge was 
unjust at the time or would be unjust if applied to a similarly situated servicemember 
today; a clemency analysis considers, rather, whether it is appropriate today to forgive 
the past offense that led to the punishment and to mitigate the punishment accordingly.  

 
11. 

In the Coast Guard’s advisory opinion, CGPC stated that a member tried 
for missing ship’s movement today could receive the same or a worse sentence under 
the Uniform Code of Military Justice and that “the policies and procedures under which 
the applicant was discharged do not differ in material respects from policies and proce-
dures currently applicable on a service-wide basis.”  During World War II, the Articles 
of War were in effect, as the UCMJ had not been enacted.  Under the Articles of War, 
the offense of  missing movement “required  a positive intent to avoid particular ship-
board service. … Where the specific intent to avoid scheduled movement was not pre-
sent,  the  fact  of  missing  ship  was  alleged  as  a  matter  in  aggravation  to  a  charge  of 
                                                 
4  Decision  of  the  Deputy  General  Counsel,  BCMR  Docket  No.  2001-043.  According  to  Sawyer  v.  United 
States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577, and Reale v. United States, 208 Ct. Cl. 
1010,  1011  (1976),  purposes  of  the  BCMRs  under  10  U.S.C.  § 1552,  “injustice”  is  “treatment  by  military 
authorities that shocks the sense of justice.” 
5 BLACK’S LAW DICTIONARY (5th ed.) 

unauthorized absence.”6  The record indicates that the applicant pled guilty to and was 
convicted of a single specification of being  AOL with missing ship’s movement as an 
aggravating factor, rather than to missing movement (as the JAG alleged).  Examination 
of prior cases indicates that cases that involved a member’s missing movement with or 
without specific intent were consistently tried by court-martial and that the sentence the 
applicant received was similar to the sentences of other members who were absent over 
or without leave and missed their ship’s movement during World War II.7   

 
12.  Under Articles 86 and 87 of the UCMJ today, being absent without leave 
and  missing  ship’s  movement  by  neglect  (rather  than  by  design,  i.e.,  with  specific 
intent) result in two separate charges unless the period of absence is just a day or two, 
in which case the unauthorized absence is considered a lesser included offense of miss-
ing  movement.8    The  maximum  sentence  for  missing  movement  by  neglect  is  a  bad 
conduct discharge, forfeiture of all pay and allowances, and confinement for one year.  
The maximum sentence for being absent without leave for fewer than 30 days is con-
finement  for  six  months  and  forfeiture  of  two-thirds  pay  per  month  for  six  months.  
Examination of recent court cases involving unauthorized absences and missing move-
ments  indicates  that  servicemembers  convicted  of  these  offenses  at  court-martial gen-
erally receive sentences of BCDs, which are sometimes suspended—like the applicant’s 
was—on condition of good behavior, as well as forfeitures of pay, reduction to E-1, and 
periods  of  confinement.9    As  CGPC  indicated,  a  member  who  is  convicted  of  being 

                                                 
6 United States v. Venerable, 19 U.S.C.M.A. 174, 176 (C.M.A. 1970) (citing Naval Courts and Boards, 1937, 
section 98, Footnote 33). 
7 See, e.g., BCMR Docket No. 9 (found guilty at GCM of being AOL for 6 days; released from confinement 
after 3 months; violated probation by being AWOL for 5 days; BCD executed);  No. 15 (found  guilty at 
GCM of being AOL for 3 days and missing ship’s movement; released from confinement after 3 months; 
violated probation by falling asleep while on duty; BCD executed); No. 52 (found guilty at GCM of being 
AOL  for  19  days;  released  from  confinement  after  5  months;  violated  probation  by  being  AWOL  for  3 
days; BCD executed); No. 68 (found guilty at GCM of being AOL for 7 days and missing ship’s move-
ment;  released  after  5  months;  chose  BCD  rather  than  probationary  period);    No.  107  (found  guilty  at 
GCM of being AOL for 42 days; released from confinement after 4 months; violated probation by being 
AWOL  for  6  days;  reconfined  for  4  months;  BCD  executed);  No.  116  (found  guilty  at  GCM  of  being 
AWOL for 29 days; restored to duty on probation; violated probation by being AWOL for 11 days; BCD 
executed);  No.  135  (found  guilty  at  GCM  of  being  AOL  for  13  days  and  missing  ship’s  movement; 
released from confinement after 5 months; violated probation by disorderly conduct; BCD executed); No. 
147  (found  guilty  at  GCM  of  being  AOL  for  17  days  and  missing  ship’s  movement;  released  from 
confinement after 4 months; violated probation by “petty offenses”; BCD executed); No. 213 (found guilty 
at GCM of being AOL for 8 days and missing ship’s movement; released from confinement on probation; 
violated probation by being AOL for 4 days); No. 250 (found guilty at GCM of being AWOL for 11 days 
and  missing  ship’s  movement;  released  from  confinement  after  3  months;  violated  probation  by  being 
AOL for 4 days); No. 283 (found guilty at GCM of being AOL for 15 days and missing ship’s movement; 
released after 5 months’ confinement; violated probation). 
8 See United States v. McGrew, 53 M.J. 522, 526 (U.S.N.M.Ct.Crim.A. 2000); United States v. Olinger, 47 M.J. 
545, 552 (U.S.N.M.Ct.Crim.A. 1997). 
9  See,  e.g.,  United  States  v.  Parker,  60  M.J.  666  (U.S.N.M.Ct.Crim.A.  2004)  (pled  guilty  to  unauthorized 
absence and missing movement by  neglect; sentenced to confinement for 30 days and an unsuspended 

absent without or over leave and missing his ship’s movement by neglect, as the appli-
cant  did,  may  under  today’s  standards  receive  a  sentence  that  includes  a  BCD  even 
when the nation is not at war, as it was in 1944.  However, the Board is also aware of 
more  recent  cases  in  which  members  who  were  absent  over  or  without  leave  and 
missed ship’s movement received much lesser punishments.10 

 
13. 

 In  the  aftermath  of  World  War  II,  this  Board  denied  most  applicants’ 
requests to upgrade BCDs absent evidence of procedural errors or psychiatric illness.11  
The applications for upgraded discharges listed in footnote 7, above, were all denied by 
the Board.  However, the Board has sometimes upgraded BCDs to general discharges 
under  honorable  conditions  when  applicants  were  young,  had  committed  only  one 
major offense, had performed extensive sea duty during war, and/or had explanations 
for committing their offenses.12  Moreover, the Board has sometimes upgraded BCDs to 
                                                                                                                                                             
BCD);  United  States  v.  Juhnke,  2003  CCA  LEXIS  245  (U.S.N.M.Ct.Crim.A.  2003)  (pled  guilty  to  missing 
movement on a combat ship by neglect and two unauthorized absences; sentenced to confinement for 85 
days  and  an  unsuspended  BCD);  United  States  v.  Minyen,  57  M.J.  804  (U.S.C.G.Ct.Crim.A.  2002)  (pled 
guilty  missing  movement  by  neglect  and  two  unauthorized  absences;  sentenced  to  confinement  for  80 
days  and  an  unsuspended  BCD);  United  States  v.  Glover,  57  M.J.  696  (U.S.N.M.Ct.Crim.A.  2002)  (pled 
guilty to unauthorized absence of 24 days and missing movement; sentenced to confinement for 45 days; 
reduction  to  E-1;  and  an  unsuspended  BCD);  United  States  v.  Nelson,  2002  CCA  LEXIS  91  (U.S.N.M.Ct. 
Crim.A. 2002) (pled guilty to unauthorized absence for 4 months and 11 days and to missing movement 
by neglect; sentenced to reduction to E-1, confinement for 100 days (suspended for 12 months except for 
45 days), and a BCD that could be vacated if the member’s conduct during the 12 months warranted it); 
United States v. Dube, 2001 CCA LEXIS 5 (U.S.N.M.Ct.Crim.A. 2001) (pled guilty to unauthorized absence 
of 39 days and missing movement by neglect; sentenced to forfeitures totaling $1,250, confinement for 60 
days  (suspended  for  12  months  except  for  45  days),  and  a  BCD  that  could  be  vacated  if  the  member’s 
conduct during the 12 months warranted it). 
10  See,  e.g.,  BCMR  Docket  No.  48-80  (2-day  period  of  AWOL  and  missing  movement  punished  at  mast 
with correctional custody for 15 days); 45-79 (SCM conviction of being AWOL for 41 days and missing 
movement, but honorably discharged due to a passive-aggressive personality disorder). 
11 For examples of BCDs upgraded to general discharges based on procedural errors or psychiatric illness, 
see BCMR Docket Nos. 11, 12, 13, 20, 41, 63, 71, 76, 109, 132, 143, 145, 157, and 212. 
12  For  examples  of  BCDs  upgraded  to  general  discharges,  see  BCMR  Docket  No.  30  (3  deck  courts  for 
minor offenses; one GCM for being AWOL 44 days); No. 42 (1 mast for being AWOL 2 days; one GCM for 
being AWOL 28 days; upgraded on basis of youth (age at enlistment), one major offense, and 14 months 
of sea duty); No. 43 (1 mast for being AOL 2 days; 2 deck courts for being AOL 2 days and 6 days; one 
GCM for being AOL 10 days; violation of probation after 7 months of confinement by being AOL 11 days; 
upgraded on basis of extensive sea service “in Northern waters” and 7 months of confinement); No. 76 (2 
masts for intoxication and for being AOL 4 hours; 1 GCM for being AWOL for 3 days and missing ship’s 
movement; upgraded on basis of youth, possible battle fatigue, and extensive sea duty in the Pacific); No. 
88 (1 GCM for being AWOL 80 days; violation of probation by being AOL 1 day; upgraded on basis of 6 
months  of  confinement  and  one  major  offense  following  a  year  of  sea  duty);  No.  93  (2  deck  courts  for 
being AOL 5 and 6 days; civil trial for petty larceny; 1 GCM for being AOL 15 days; upgraded on basis of 
5 months of confinement and “us[ing] his AOL for a worthwhile purpose”); No. 100 (1 GCM for being 
AOL  42  days;  upgraded  on  basis  of  17  months  of  combat  duty  in  Pacific,  one  major  offense,  and  no 
probationary period); No. 127 (1 mast for being AOL 18.5 hours; 3 deck courts for disobedience; 1 GCM 
for disobedience and conduct to the prejudice of good order; upgraded on basis of youth, inexperience, 
and  lack  of  probationary  period);  No.  128  (1  GCM  for  throwing  a  wad  of  paper  at  an  officer  and 

general  discharges  under  honorable  conditions  based  on  the  fact  that  the  veteran  has 
suffered  the  burden  of  his  BCD  for  many  years  and  on  the  fact  that  the  veteran  was 
young when he committed the offense for which the BCD was awarded.13  The appli-
cant in this case was 17 years old when he enlisted and 18 when he became AOL and 
missed his ship’s movement.  He suffered under the burden of his BCD until his death 
in 1993. 
 
14. 

The  record  indicates  that  the  applicant  may  have  received  significantly 
less due process than a member in similar circumstances would today.  There is no evi-
dence in the record that he was represented by an attorney or allowed to consult one, 
even though he had completed just one year of high school before enlisting.  Moreover, 
a member in the applicant’s circumstances today would be entitled to a vacation hear-
ing before a BCD would be executed due to a four-day period of AWOL.  Although it is 
possible  that  the  applicant,  if  he  committed  the  same  offenses  today,  could  receive  a 
BCD, it is also unlikely that he would.  Periods of AWOL and missing movement are 
commonly handled at mast, rather than court-martial, and the Personnel Manual pro-
vides numerous alternative methods for handling repeat offenders, such as general dis-
charges for repeated absenteeism and misconduct under Article 12.B.18.  Therefore, the 
Board finds that the applicant’s BCD is probably more severe than the punishment he 
would receive today for similar offenses.  The Board also believes that the passage of 

                                                                                                                                                             
threatening to kill 2 officers after one of them used a racial slur during a group lecture; upgraded because 
“clemency is justifiable”); No. 132 (1 GCM for being AOL 6 days and missing ship’s movement; upgraded 
on basis of immaturity and only one offense); No. 165 (2 masts for being AOL 6 hours and 2 days; 1 deck 
court for being AOL 7 days; 1 GCM for being AOL 9 days and missing ship’s movement; sentenced to 
reduction to SA, confinement for 3.5 years, and BCD; released after 4 months but violated probation by 
going AOL); No. 196 (1 SCM for being AOL 26 days; 1 GCM for being AOL 28 days; upgraded because 
absences were spent working on family farm after father was injured in car accident); No. 217 (1 GCM for 
being AOL and missing ship’s movement; sentenced to 6 months at hard labor and BCD; released after 3 
months but violated probation by being AOL); No. 264 (2 masts; 1 SCM; 1 GCM for being AOL 20 days 
and  missing  ship’s  movement;  2  masts  while  in  confinement  for  yelling  “racial  discrimination”;  no 
probationary period). 
13 For examples of cases in which the Board upgraded BCDs to general discharges under honorable con-
ditions  based  primarily  on  the  length  of  time  the  veteran  had  borne  the  burden  of  the  BCD  and  the 
veteran’s  youth  at  the  time  of  the  offense,  see  BCMR  Docket  No.  349-89  (World  War  II  veteran  with  2 
masts for creating a disturbance and being AOL 2 days, 1 SCM for being AWOL 16 days, and another 
SCM  for  being  AWOL  10  days  and  missing  movement;  upgrade  based  on  length  of  time  and  youth; 
upgrade approved by delegate of the Secretary); No. 104-89 (1 SCM for 4 periods of AWOL totaling 71 
days);  No.  387-86  (1  SCM  for  being  AOL  29  days  and  missing  movement,  and  another  SCM  for  being 
AOL  2.5  days,  theft,  and  “scandalous  [homosexual]  conduct”;  upgrade  based  on  “length  of  time  peti-
tioner  has  suffered  under  the  onus  of  his  [BCD]”);  No.  143-81  (1  SCM for  petty  theft  of  camera during 
boot camp; dishonorable discharge mitigated to BCD; upgrade based youth and length of time); No. 27-81 
(1 SCM for 2 periods of AWOL for 9 days and 32 days; 1 GCM for being AWOL 27 days; upgrade based 
on  youth  and  length  of  time);  No.  159-79  (1  mast  for  neglect  of  duty;  1  SCM  for  being  AWOL  for  2 
months;  1  GCM  for  being  AOL  75  days;  upgrade  based  on  length  of  time  and  lack  of  mitigation  of 
sentence); No. 149-79 (2 deck courts for being drunk and disorderly; 3 SCMs for being AWOL 59 hours, 
20 days, and then 1 day; upgrade based on length of time). 

time and the fact that the request is made  by a deceased applicant’s daughter who is 
herself a Coast Guard veteran support the exercise of additional clemency regarding the 
original  sentence  of  the  court  martial  that  goes  beyond  the  mitigation  originally  pro-
vided to the applicant in 1944.  In light of the facts and precedents discussed above, the 
Board finds that it would be in the interest of justice to grant clemency on the sentence 
of the 1944 court-martial by  modifying its sentence of a BCD to that of a general dis-
charge under honorable conditions.   

 
15.  Although the applicant’s daughter requested an honorable discharge, the 
applicant’s GCM conviction and marks do not support an honorable discharge under 
either  Article  4952(1)  and  (2)  of  the  Personnel  Instructions  in  effect  in  1946  or  Article 
12.B.2.f.1.c. of the current Personnel Manual.  Furthermore, the requested relief would 
exceed that previously granted by this Board in many similar cases.   

 
16.  Accordingly, partial relief should be granted by upgrading the applicant’s 

discharge to general under honorable conditions.  
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

 

The  application  for  correction  of  the  military  record  of  former  SA  xxxxxxxxxx, 

USCGR, is granted in part as follows:  

 
The  character  of  his  discharge  shall  be  upgraded  to  general  “under  honorable 

conditions.”  

 

 
 

 
 

 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 Philip B. Busch 

 

 

 
 George J. Jordan 

 

 

 
 
 Adrian Sevier