DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-167 
 
XXXXXXXXXXXXX 
Xxx xx xxxxx,  SR/E-1 (former) 
   

 

 

FINAL DECISION 

 
AUTHOR:  Hale, D. 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on September 16, 2005, upon 
the BCMR’s receipt of the applicant’s completed application for correction. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  1,  2006,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The  applicant,  a  former  seaman  recruit  (SR;  pay  grade  E-1)  who  served  a  little 
 
more  than  two  years  in  the  Coast  Guard,  asked  the  Board  to  correct  his  record  by 
upgrading  his  1981  discharge  (under  other  than  honorable  conditions)  to  honorable.  
The  applicant  stated  that  he  served  his  country  and  feels  that  he  is  entitled  to  an 
honorable  discharge.    He  further  stated  that  he  regrets  not  having  fulfilled  his  four 
years of active duty and that “I was a very young and foolish boy at that time in my 
life.”    He  did  not  explain  why  he  waited  more  than  24  years  before  filing  his 
application. 
 

SUMMARY OF THE RECORD 

 

The  applicant  enlisted  in  the  Coast  Guard  on  October  17,  1978.    During  his 
enlistment, the applicant was disciplined on several occasions for being absent without 
leave (AWOL) and for a variety of related offenses.  

 

On August 17, 1979, the applicant was charged with violating Article 86 of the 
Uniform Code of Military Justice (UCMJ) for being AWOL.  He was also charged with 
missing his ship’s movement and for disobeying a lawful order.  He was awarded non-
judicial punishment (NJP)1 of 21 days’ restriction and 21 days of extra duty.   

On October 2, 1980, the applicant was awarded NJP of three days’ restriction and 

14 days of extra duty for being AWOL. 

 
On November 10, 1980, the applicant was awarded NJP of 30 days’ restriction for 

being AWOL and for breaking his restriction.   

 
On April 30, 1981, the applicant was charged with  being AWOL for four months, 
breaking  his  restriction,  and  for  missing  his  ship’s  movement.    Following  his 
apprehension  he  was  held  in  pre-trial  confinement  to  ensure  his  presence  at  the 
subsequent court martial. 

 
On May 19, 1981, under the advice of counsel, the applicant requested discharge 
from  the  Coast  Guard  “under  other  than  honorable  conditions  for  the  good  of  the 
service”  in  lieu  of  trial  by  court  martial.    In  his  letter  to  the  Commandant  requesting 
discharge, he stated that 

 
I  understand  that  if  this  request  is  approved  I  will  receive  a  discharge  under 
other  than  honorable  conditions.    I  understand  that  such  a  discharge  may 
deprive  me  of  virtually all  veteran’s  benefits  based  upon  my  current  period  of 
active service and that I may expect to encounter substantial prejudice in civilian 
life in situations where the type of service rendered in any branch of the Armed 
Forces or the character of discharge therefrom may have a bearing.    
 
On  June  10,  1981,  the  applicant’s  commanding  officer  (CO)  certified  that  the 
charges against the applicant were accurate and stated that “further disciplinary action 
would not alter this situation and that his release from the Coast Guard would be best 
for both parties.”  The CO noted that the applicant had received three NJPs involving 
AWOL  while  assigned  to  the  ship  and  that  his  marks  had  been  consistently  below 
average in both proficiency and conduct.  He also stated that the applicant had “neither 
the  ability  to  presently  compete  successfully  in  the  Coast  Guard  nor  the  ambition  to 
improve himself sufficiently to allow himself to compete in the future.”  

 
On June 19, 1981, the Commander, Thirteenth Coast Guard District (the officer 
exercising general court martial authority over the applicant) recommended approval of 
the applicant’s discharge.  

 

                                                 
1 Article 15 of the UCMJ provides NJP as a disciplinary measure that is more serious than administrative 
corrective measures but less serious than trial by court martial.  

On  October  28,  1981,  the  applicant  was  discharged  from  the  Coast  Guard 
pursuant  to  Article  12.B.21.  of  the  Coast  Guard  Personnel  Manual.    He  received  a 
discharge  “under  other  than  honorable  conditions,”  a  separation  code  of  KFS,2  and 
“under other than honorable conditions” as the narrative reason for separation.3  The 
record  indicates  that  the  applicant  received  an  RE-4  reenlistment  code  (ineligible  to 
reenlist).  He had served in the Coast Guard for two years, six months, and 20 days. 

                                                 
2 KFS denotes a discharge allowed by established directive when separated for conduct triable by court 
martial for which the member may voluntarily separate in lieu of going to trial. 
3  On  May  19,  1982,  the  Coast  Guard  placed  a  DD  Form  215  (correction  to  the  DD  Form  214)  in  the 
applicant’s record changing the narrative reason for separation to “for the good of the service.” 

 

VIEWS OF THE COAST GUARD 

 
On  January  30,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
 
submitted  an  advisory  opinion  in  which  he  adopted  the  findings  of  the  Coast  Guard 
Personnel  Command  (CGPC)  and  recommended  that  the  Board  deny  the  applicant’s 
request.  The JAG argued that the applicant failed to submit a timely application and 
failed to provide any evidence in support of his claim that his record should be changed 
or that he suffered an injustice.  
 
 
The JAG also argued that notwithstanding the timeliness issue, relief should be 
denied  because  the  applicant  had  accumulated  171  days  of  “bad  time”  over  four 
separate  periods  of  unauthorized  absence.    Finally,  the  JAG  noted  that  the  applicant, 
after consulting with legal counsel, requested a discharge under other than honorable 
conditions in lieu of being court martialed for desertion. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  February  2,  2006,  the  BCMR  sent  the  applicant  a  copy  of  the  views  of  the 
Coast Guard and invited him to respond within 30 days.  The BCMR did not receive a 
response. 
 

APPLICABLE REGULATIONS 

 

Under Article 12.B.21.a. of the Coast Guard Personnel Manual in effect in 1981, a 
member could request a discharge under other than honorable conditions for the good 
of  the  service  in  lieu  of  UCMJ  action  if  punishment  for  the  alleged  misconduct  could 
result in a punitive 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 section 1552 

of title 10 of the United States Code.  The application was untimely. 

 
2. 

 An application to the Board must be filed within three years of the day 
the  applicant  discovers  the  alleged  error  in  his  record.    10  U.S.C.  §  1552(b).    The 
applicant was issued a DD 214 on October 28, 1981, with a discharge under other than 
honorable  conditions  and  an  RE-4  reenlistment  code.    This  information  is  clearly 
marked on the DD 214 and thus he knew or should have known that he had received a 

discharge under other than honorable conditions.  Therefore, the Board finds that the 
application was filed more than 22 years after the statute of limitations expired and is 
untimely. 

 
3. 

Under 10 U.S.C. § 1552(b), the Board may waive the three-year statute of 
limitations 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 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 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.”  Id. 
at 164, 165.  See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).  
 

4. 

The  applicant  provided  no  explanation  for  his  failure  to  request  an 
upgrade of his discharge at an earlier date, and stated that he experienced problems in 
the Coast Guard because “he was young and foolish at that time in his life.”  A cursory 
review of the record indicates that the applicant has not proved that the Coast Guard 
committed  an  error  or  injustice  in  awarding  him  a  discharge  under  other  than 
honorable  conditions.    The  record  indicates  that  the  applicant,  with  the  advice  of 
counsel, voluntarily submitted a request to be discharged under other than honorable 
conditions to avoid being court martialed.  In addition, the applicant’s CO supported 
his discharge, citing the applicant’s history of NJPs and the futility of pursuing further 
disciplinary  action.    The  Board  concludes  that  the  applicant’s  request  lacks  any 
discernible merit.  
 

5. 

 Accordingly,  due  to  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 APPEAR ON NEXT PAGE] 

 

ORDER 

 

The  application  of  former  SR  XXXXXXXXXXXXXXXX,  USCG,  for  correction  of 

 
 

 
 

 
 

 
 

 

 
 

 
 

his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 
 

 
 
 

 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 

 

 

 

 
 

 
 

 
 
 

 
 

 

 
 Elizabeth F. Buchanan 

 

 

 

 

 

 
 Randall J. Kaplan 

 

 

 

 
 Audrey Roh