DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-061 
 
Xxxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxxx 

 

 
 

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 
February 24, 2006, upon the Board’s receipt of the completed application and military 
records. 
 
 
duly appointed members who were designated to serve as the Board in this case. 

This final decision, dated November 2, 2006, is adopted and signed by the three 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

The applicant is a veteran of World War II who received a bad conduct discharge 
(BCD)  on  March  15,  1944,  pursuant  to  the  sentence  of  a  summary  court  martial.    He 
apologized for the trouble he caused the Coast Guard and asked the Board to upgrade 
his discharge to honorable. 

 
The applicant stated that he enlisted in the Coast Guard Reserve at age 17 and 
was still 17 when he got into trouble.  He stated that he was the oldest of six siblings 
when he enlisted.  When he went home on leave for a week, his father had to go into the 
hospital for surgery and his mother needed him to stay home to help.  He felt that he 
had to stay to help his family, but he was afraid to call his command.  When he returned 
to his command, he was still young and scared and so did not fight the charges. 

 
The  applicant  stated  that,  since  his  discharge,  he  has  primarily  been  self-
employed in the xxxxxxxxxxx businesses.  As a small business man, he has sponsored 
and  supported  a  local  boys’  club,  Little  League  teams,  and  charitable  events.    He  has 

long  been  a  member  of  the  xxxxxxxxxxxx  and  a  local  church.    He  and  his  wife  of  xx 
years have xx children and xxx grandchildren. 

 
Regarding the delay of his application, the applicant wrote that in 1967, he heard 
that  veterans  could  apply  to  have  their  discharges  upgraded  and  that  he  did  so  but 
never received a response.  In 2002, he asked the Department of Veterans Affairs about 
his discharge but again never got a response. 
 

SUMMARY OF THE RECORD  

 
 
On July 30, 1943, when he was 17 1/2 years old, the applicant enlisted for three 
years in the Coast Guard Reserve.  His enlistment papers show that he had five younger 
siblings  at  home  in  Providence,  Rhode  Island;  had  completed  just  one  year  of  high 
school; and was working to support his family.  His father earned $32 per week.  
 
 
On October 10, 1943, the applicant’s command in New York reported that he had 
failed to return from an authorized liberty period and was therefore absent over leave 
(AOL). 
 
 
On  November  10,  1943,  the  applicant  was  declared  a  deserter  because  he  had 
been AOL for more than 30 days.  The Coast Guard informed the chief of police and 
mayor  of  Providence,  as  well  as  the  applicant’s  mother,  by  letter.    On  November  19, 
1943, local police delivered the applicant to the brig in Providence.  The police reported 
that  upon  apprehension,  the  applicant’s  attitude  was  “rough”  and  he  tried  to  escape.  
The applicant was confined pending trial. 
 
 
On  December  1,  1943,  the  applicant  was  tried  by  summary  court  martial  and 
found guilty of being AOL for 39 days.  He was sentenced to confinement for 30 days 
and  forfeiture  of  $25  of  pay  per  month  for  four  months.    The  Convening  Authority 
approved  the  sentence  on  December  8,  1943.    On  January  18,  1944,  the  applicant  was 
released from the brig. 
 
 
On January 31, 1944, the applicant was apprehended after he went AWOL for an 
evening wearing the apparel of other Coast Guard members.  He had also conspired to 
steal an automobile.  He was returned to the brig. 
 

On March 10, 1944, the applicant was tried by summary court martial and found 
guilty of (a) having been absent without leave (AWOL) from 6:30 p.m. to 8:45 p.m. on 
January  31,  1944;  (b)  having  unlawfully  and  wrongfully  conspired  to  steal  an  auto-
mobile;  and  (c)  having  in  his  possession  and  without  authority  the  “wearing  apparel 
belonging to other persons in the C.G.”  The applicant was sentenced to be separated 

with  a  BCD1  and  to  forfeit  $20  of  pay  per  month  for  eight  months.    The  Convening 
Authority approved the sentence that same day.   
 
On March 15, 1944, the applicant was released from the brig and separated with 
 
a BCD.  Upon his discharge, the applicant’s final average marks were 2.14 (out of 4.0) 
for proficiency in rating and 2.0 for conduct.   
 

 

VIEWS OF THE COAST GUARD 

 
 
On  May  19,  2006,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  sub-
mitted  an  advisory  opinion  in  which  he  recommended  denying  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  deny  relief  because  the  application  was 
untimely, because the applicant did not justify his delay, and because “there does not 
appear to be any injustice or inequity regarding his discharge.”  CGPC also stated that 
the applicant’s post-discharge conduct has no bearing on the character of his military 
service  or  on  his  discharge.    CGPC  alleged  that  “the  awarding  of  a  bad  conduct 
discharge is proportionate to the nature of his offenses and his record fully supports the 
awarded character of service.” 
 

RESPONSE TO THE VIEWS OF THE COAST GUARD 

On May 23, 2006, the Chair sent the applicant a copy of the views of the Coast 

 
 
Guard and invited him to respond within 30 days.  No response was received. 
 

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 March 15, 1944.  Thus, the application was untimely by more than 
55 years.   
                                                 
1 Under Article 4952(6) of the Coast Guard Personnel Instructions in 1944, 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.” 

 
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.”2   

 
4. 

The  applicant  did  not  provide  any  compelling  explanation  for  waiting 
more than 55 years to seek clemency.  However, there is some excuse for delay given 
the applicant’s youth and lack of education at the time of his BCD.   

  
5. 

A cursory review of the merits indicates that less than three months after 
he enlisted, the applicant failed to return to his unit from leave and was therefore deter-
mined first to be AOL and then, after being AOL for 30 days, to have deserted.  When 
police found him 39 days later, they reported that he resisted arrest and attempted to 
escape.  He was convicted by summary court martial of being AOL and sentenced to a 
month in the brig.  He was released from the brig on January 18, 1944, but was returned 
to the brig on January 31, 1944, after he took the apparel of fellow Coast Guard mem-
bers  without  authorization,  conspired  to  steal  an  automobile,  and  went  AWOL.    On 
March 10, 1944, he was convicted by a summary court martial of being AWOL on Jan-
uary 31, 1944, of wrongfully conspiring to steal an automobile, and of possessing with-
out authority the apparel of other members.  He was sentenced to a BCD and forfeitures 
of pay totaling $160.  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.3   

 
6. 

A  cursory  review  of  the  record  indicates  that  it  is  unlikely  that  the 
applicant  can  prevail  upon  the  merits.    Ten  weeks  after  he  enlisted,  the  applicant 
deserted his unit, and he resisted arrest when the police found him almost six  weeks 
later.  Then less than two weeks after being released from the brig, he misappropriated 
the apparel of other Coast Guard members and conspired to steal an automobile.  With 
two summary court martial convictions and final average marks of 2.14 for proficiency 
in  rating  and  2.0  for  conduct,  the  applicant  certainly  did  not  meet  the  criteria  for  an 
honorable discharge.4  Nor do the applicant’s marks meet today’s requirements for an 
honorable discharge.5 

                                                 
2 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). 
3 10 U.S.C. § 1552(f)(2). 
4 Under Article 4952(1) and (2) of the Personnel Instructions in 1944, members could receive an honorable 
discharge only 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 

 

7. 

In  seeking  clemency,  the  applicant  cited  his  long  history  of  support  for 
charitable  organizations.    With  respect  to  upgrading  discharges,  the  delegate  of  the 
Secretary 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 
standards the discharge was disproportionately severe vis-à-vis the conduct in response 
to which it was imposed.”  The Coast Guard argued in the advisory opinion that “the 
awarding of a bad conduct discharge is proportionate to the nature of his offenses and 
his record fully supports the awarded character of service.”  Today, the maximum pun-
ishment a member may receive under the Uniform Code of Military Justice for conspir-
acy to steal a non-military automobile is a dishonorable discharge, forfeiture of all pay 
and allowances, and confinement for five years.6  Therefore, the Board is not persuaded 
that the applicant’s BCD was disproportionately severe in light of today’s standards. 

 
8. 

The Board does not, however, construe the standard in the delegate’s 1976 
letter as prohibiting 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 misconduct, 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.”7   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.    The  Board  has  sometimes  upgraded  dis-
charges by exercising its clemency authority, rather than by strictly applying the 1976 
guidance.8  

 
9. 

In  the  aftermath  of  World  War  II,  this  Board  denied  most  applicants’ 
requests to upgrade BCDs absent evidence of procedural errors or psychiatric illness.9 
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  had  explanations  for 

                                                                                                                                                             
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 enlistment, convenience of 
the government,  minority,  hardship,  or physical or  mental disability  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  dis-
charge 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. 
5 Article 12.B.2.f.1.c. of the current Personnel Manual states that, to receive an honorable discharge prior 
to 1983, a “member must have made a minimum final average of 2.7 in proficiency and 3.0 in conduct.” 
6 MANUAL FOR COURTS-MARTIAL UNITED STATES, 1995 ed., Part IV-70. 
7 BLACK’S LAW DICTIONARY (5th ed.) 
8 See, e.g., cases listed under footnote 11, below.   
9 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. 

committing their offenses.10  In addition, the Board has sometimes upgraded BCDs to 
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.11 
 

10. 

 The applicant in this case was 17 years old when he enlisted and stayed 
AOL and 18 when he committed the offenses for which he received the BCD.  He has 

                                                 
10  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 
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). 
11 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). 

suffered under the burden of the BCD for a very long time.  In addition, he may have 
received less due process in 1944 than a member in similar circumstances would today.  
However,  the  applicant  did  not  prove  that  his  family’s  situation  required  him  to  be 
AOL, and he provided no reasonable explanation for taking the apparel of others and 
conspiring to steal an automobile on January 31, 1944.  From his enlistment on June 30, 
1943, until his discharge on March 15, 1944, he spent more time in the brig and being 
absent without leave than he did actually serving his country.  The record shows that 
the  applicant  was  a  significant  administrative  and  disciplinary  burden  to  the  Coast 
Guard rather than an asset.  In light of these considerations, the Board finds that it is 
unlikely that the applicant can prevail upon the merits as there is no evidence of error 
or injustice12 in the record, and the Board is not persuaded that clemency is due in this 
case.   

 
11.  Accordingly, the Board should not waive the statute of limitations in this 

case.  The applicant’s request should be denied. 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
12 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),  for  purposes  of  the  BCMRs  under  10  U.S.C.  § 1552, 
“injustice” is “treatment by military authorities that shocks the sense of justice.” 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, for correction 

of his military record is denied. 

ORDER 

 

 

 
 

 
 

 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 Harold C. Davis, M.D. 

 

 

 

 
 James E. McLeod 

 

 

 
 Dorothy J. Ulmer