DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2006-089 
 
Xxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxxxx 

 

 
 

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 
April 7, 2006, upon receipt of the application and the applicant’s military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  November  21,  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 
general discharge from the Coast Guard Reserve for “shirking” on September 2, 1974, to 
an honorable discharge.  The applicant alleged that he agreed upon enlistment in the 
Reserve to drill one weekend per month and to perform active duty for training (ADT) 
for two weeks per year.  However, his assigned command scheduled him to perform 
more drills than the number he had agreed to and initiated his general discharge when 
he refused to perform the excess drills. 

 
Regarding the delay in his request for relief, the applicant alleged that he discov-
ered the alleged error in his record in 2006.  However, he also wrote that he started the 
process years ago but was unable to follow up and did not think that he had any rights.  
He  decided  to  request  relief  now  because  he  knows  that  he  does  have  rights  and 
because his own actions did not cause his discharge.  
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

 

On June 21, 1971, the applicant enlisted in the Coast Guard Reserve for six years 
and immediately began five months of initial ADT.  The Statement of Understanding he 
signed that day states the following in pertinent part: 

 
I do further understand that satisfactory participation shall consist of: 
(1)  Satisfactory completion of the initial period of active duty for training. 
(2)  Attendance at and satisfactory participation in at least 48 scheduled drills or training 
periods each anniversary year and satisfactory service on active duty for training of not 
less than 14 consecutive days each anniversary year; … 
(3)  Maintenance of a satisfactory rate of advancement during the full term of my enlist-
ment … 
(4) Maintenance  of  satisfactory  standards  of  professional  performance,  interest,  adapt-
ability, military behavior and appearance. 

 

On November 20, 1971, the applicant was released from ADT and assigned to a 
Reserve unit in Long Beach, California.  He received a separation form, DD 214, noting 
that  his  service  had  been  honorable.    His  Annual  Retirement  Point  Statement  for  the 
anniversary year ending on June 20, 1972, shows that he performed four drills each in 
December 1971 and January, February, March, April, and May 1972.  On June 11, 1972, 
the  applicant  was  counseled  in  writing  about  having  missed  his  scheduled  drills  that 
day.  However, the Annual Retirement Point Statement shows that he made them up by 
performing two drills before the end of his anniversary year on June 20, 1972.  On July 
1, 1972, the applicant advanced to seaman (pay grade E-3).  His marks at Long Beach 
were 3.3 (out of 4.0) for proficiency, 3.3 for leadership, and 4.0 for conduct. 

 
The applicant’s Annual Retirement Point Statement for the anniversary year end-
ing on June 20, 1973, shows that he completed 13 days of ADT in August 1972 and that 
he  performed  no  drills  in  the  latter  part  of  June  1972;  four  drills  in  July  1972;  two  in 
August 1972; and four each in September, October, November, and December 1972.  On 
December  27,  1972,  because  the  Long  Beach  unit  was  terminated,  the  applicant  was 
reassigned to drill on a cutter based in Encino, California.  He performed four drills in 
January 1973; eight in February 1973; none in March or April 1973; four in May 1973; 
and none in the first part of June 1973.  Therefore, he completed a total of 38 drills dur-
ing the anniversary year.   

 
On  May  19,  1973,  the  applicant’s  commanding  officer  (CO)  advised  him  in  a 
letter that his participation had not been satisfactory and ordered him to attend drill on 
May  27,  1973.    On  May  27,  1973,  the  CO  informed  the  District  Commander  that  the 
applicant had 8 unexcused drills that he needed to make up as well as his regular June 
drills but that the applicant claimed he could not perform the drills because of a work 
conflict.  The CO stated that the applicant’s appearance, attitude, and attendance were 
unsatisfactory and asked the applicant be transferred from the cutter to the active status 
pool.  On May 30, 1973, the District Commander issued orders transferring the appli-

cant to the active status pool, but the orders were canceled following a further consulta-
tion with the applicant. 

 
In June 1973, the applicant completed 12 days of ADT, which applied toward his 
anniversary year ending on June 20, 1974.  On November 12, 1973, his CO sent him a 
letter concerning his “unsatisfactory participation in the Coast Guard Reserve.”  The CO 
noted  that  the  applicant  had  not  attended  scheduled  drills  on  November  10  and  11, 
1973,  and  that  he  had  accumulated  12  unexcused  absences.    The  CO  ordered  him  to 
attend drill on November 17, 1973.   

 
In December 1973, the applicant received a performance evaluation with marks 
of 2.0 for proficiency, 2.0 for leadership, and 4.0 for conduct.  On March 24, 1974, the 
applicant was taken to mast for having violated Article 92 of the Uniform Code of Mili-
tary Justice on February 28, 1974, by disobeying a lawful order issued by a petty officer 
on board a cutter.  His CO sentenced him to a reduction in pay grade to E-2. 
 
 
Also on March 24, 1974, the applicant’s CO recommended to the Commandant 
that  the  applicant  be  administratively  discharged.    He  wrote  that  the  applicant  had 
missed 35 of his scheduled drills since June 21, 1973, unexcused, and still had 15 unex-
cused absences that he had not yet made up.  The CO stated that the applicant had been 
counseled about unsatisfactory attendance and unexcused absences in May, September, 
and November 1973.  The CO wrote that the applicant’s “non-performance of assigned 
orders has followed a set shirking pattern, such that virtually every month, during the 
last six months, he has had to be telephoned at his home, if he can be found at all, on the 
day of his assigned drill and questioned as to why he failed to report on increment drill 
orders or [other] orders for that particular month.”  The CO also noted that on January 
26, 1974, the applicant had reported aboard the cutter out of uniform and without prop-
erly groomed hair and had been ordered off the cutter and that on February 28, 1974, 
the applicant reported aboard the cutter without orders and was subsequently involved 
in an incident resulting in two violations of Article 92 and one violation of Article 91, 
(disrespect to a senior petty officer) although two of the three charges against him were 
later dismissed with warning at mast.  The CO concluded that the applicant “has been 
nothing  but  a  time-consuming  administrative  problem  and  a  liability  to  the  Coast 
Guard Reserve since his reporting to this Unit.  He has had counseling and been given a 
more  than  reasonable  opportunity  to  correct  his  deficiencies.    For  the  benefit  of  the 
Service  it  is  requested  that  he  be  issued  a  General  Discharge  for  reason  of  shirking 
duty.” 
 

In June 1974, the applicant received marks of 1.9 for proficiency, 1.9 for leader-
ship, and 3.3 for conduct.  There is no Annual Retirement Point Statement in the appli-
cant’s record for the anniversary year ending June 20, 1974. 
 

 

On July 10, 1974, the District Commander forwarded the CO’s recommendation 
to the Commandant with his own recommendation that the applicant receive a general 
discharge for shirking. 

 
On  July  26,  1974,  the  Commandant  ordered  the  District  Commander  to  advise 
the applicant that he was being considered for a general discharge for shirking and to 
afford him a period of 30 days to submit a statement in his own behalf. 

 
On August 2, 1974, the District Commander informed the applicant by letter that 
he was being considered for a less than honorable discharge due to shirking.  The letter 
also states that the applicant could submit a statement in his own behalf within 30 days 
and that if no reply was received, “a General Discharge will be issued without further 
warning.”  A note on the letter indicates that it was sent by certified mail with return 
receipt requested.  The address used was the same that the applicant used as his return 
address  on  his  subsequent  letter  to  the  District  Commander  in  September  1974.    The 
applicant did not respond to this letter in the time allotted.   
 
On September 2, 1974, the applicant received a general discharge for shirking in 
 
accordance with 33 C.F.R. § 8.6206(g)(2) and by order of the Commandant dated July 26, 
1974.  His command noted that he “was afforded an opportunity to make a statement in 
his own behalf concerning the action contemplated but failed to do so.”  He had com-
pleted 3 years, 2 months, and 12 days of military service.  The applicant’s final average 
marks were 2.74 for proficiency, 2.82 for leadership, and 3.86 for conduct.  An Annual 
Retirement Point Statement in his record shows that the applicant earned 2 drill points 
during his final, partial anniversary year from June 21 to September 2, 1974. 
 
On September 23, 1974, the District Command received an undated letter from 
 
the  applicant,  though  the  postmark  on  the  envelope  indicates  that  it  was  mailed  on 
September 19, 1974.  The applicant wrote that the first weekend he reported to drill at 
Encino, his assigned cutter was not even in port, and he was required to make up the 
weekend later without pay, which he would not do.  The applicant further wrote that 
the subsequent drills he was accused of not performing “are due to the scheduling of 
excessive  drills  to  me  month  after  month  by  [LT  B].”    He  claimed  that  he  had  been 
scheduled  to  drill  two  or  three  weekends  per  month  instead  of  the  one  weekend  per 
month he agreed to.  He alleged that it was impossible for him to make up all the drills 
he had missed by drilling two or three weekends per month without pay.  The appli-
cant stated that he had met with a District officer to review his attendance record, and 
the  District  officer  had  concluded  that  he  had  been  unjustifiably  scheduled  for  extra 
drills and that he should not have to make them up.  Thereafter, he was told to return to 
the cutter and that his attendance record would be wiped clean so that he could have a 
new start.  The applicant stated that for a couple of months, he was properly scheduled 
to drill one weekend per month, but “then the double orders started coming again and 
again, and when I didn’t perform both weekends a month, the make ups came with no 

pay.”  The applicant also complained that he had studied to become a port security spe-
cialist but had been involuntarily switched to the boatswain’s mate rating when he was 
transferred to the cutter.  The applicant stated that since the cutter’s command refused 
to honor his enlistment contract by scheduling him to drill just one weekend per month, 
he would like to be transferred to a new unit. 
 
 
On  September  23,  1974,  the  District  Commander  responded  to  the  applicant’s 
letter.  He noted that the applicant’s response was received “some seven days past the 
date which you promised me it would be received,” and that the general discharge had 
been mailed to the applicant on September 20, 1974, with an effective date of September 
2, 1974.  He stated that he “held it in this office with the hopes that you would honor 
our  conversation,  which  you  apparently  chose  to  ignore.”    He  further  wrote  that  “I 
don’t  feel  it  appropriate  to  challenge  each  point  outlined  by  you  in  your  letter.    You 
were  informed  of  the  change  in  the  Reserve  Program  with  the  promulgation  of  aug-
mentation, you acknowledged this by signing a statement to this effect.  You make no 
mention of your grooming standards for which you were counseled several times and 
which you chose to disregard.  I can only appreciate your anxiety for the position your 
non-conformity now places you.”  The District Commander noted that the applicant’s 
record  had  already  been  forwarded  to  Headquarters  and  that  the  applicant’s  letter 
would be forwarded as well. 
 
 
 

VIEWS OF THE COAST GUARD 

 
 
On  August  8,  2006,  the  Judge  Advocate  General  (JAG)  submitted  an  advisory 
opinion in which he recommended that the Board deny the requested relief.  In doing 
so, the JAG adopted the facts and analysis in a memorandum on the case prepared by 
the Coast Guard Personnel Command (CGPC). 
 
CGPC  stated  that  the  Board  should  deny  relief  because  the  application  is  not 
 
timely and because the applicant “failed to substantiate any justification for the delay.”  
Moreover, CGPC stated, “there does not appear to be any discrepancy with regards to 
his record.”  CGPC alleged that the applicant’s “contention that he was ordered to per-
form drills in excess of that required by his contract is not substantiated by … his record 
…  There is no indication that the Applicant was treated unfairly or unjustly.”  CGPC 
pointed out that the applicant acknowledged the requirements of a reservist when he 
signed  the  Statement  of  Understanding  upon  enlistment,  but  he  repeatedly  failed  to 
meet his obligations.  CGPC stated that the applicant was counseled several times, put 
on notice of the proposed discharge, and afforded due process.  CGPC stated that the 
applicant was discharged “in accordance with prescribed procedures.”  
  

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On August 16, 2006, the applicant responded to the views of the  Coast Guard.  
The applicant alleged that the fact that, when he missed drill on November 10 and 11, 
1973,  he  was  ordered  to  attend  drill  on  November  17,  1973  supports  his  claim  that 
“there were meetings going on every weekend which also backs up my claim that they 
wanted me to attend 2 weekends a month.  So they were scheduling weekends every 
month in which I refused to do.”   
 
 
The  applicant  alleged  that  he  was  “never  notified  of  any  intent  to  be  adminis-
tered  a  General  Discharge.”    He  argued  that  the  Coast  Guard  should  be  required  to 
provide proof of every claim they have made, and that he has not seen such proof. 
 

APPLICABLE REGULATIONS 

 
 
Article 12-B-12(b) of the Personnel Manual in effect in 1974 authorized the Com-
mandant to direct the discharge of an enlisted member for unfitness “to rid the Service 
of an individual whose military record is characterized by … an established pattern of 
shirking.”  Article 12-B-12(b) further provided that such a discharge “will not normally 
be initiated until a member has been counseled concerning his deficiencies and afforded 
a reasonable opportunity to overcome them.”  Article 12-B-12(a) stated that an enlisted 
member  “may  be  separated  by  reason  of  unfitness  with  an  undesirable  discharge, 
unless the particular circumstances in a given case warrant a general or honorable dis-
charge.  Discharge by reason of unfitness and the type of discharge to be issued will be 
directed only by the Commandant.”  
 
 
 
 
 

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  general  discharge  in  1974.    Although  he  stated  that  he  discovered  the 
alleged error in his record in 2006, the Board finds that he knew or should have known 

of  the  general  character  of  his  discharge  upon  his  discharge  in  1974.    Therefore,  his 
application was untimely. 

 
3. 

6. 

7. 

4. 

5. 

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.”  Id. at 164-65. 
 
 
Other  than  alleging  that  he  did  not  previously  know  his  “rights,”  the 
applicant did not explain why he waited more than thirty years to ask for his discharge 
to be upgraded.  He has not provided a compelling reason for his long delay. 
 
 
Under 33 C.F.R. § 52.24(b), the applicant’s military records are presump-
tively correct, and he bears the burden of proving error or injustice in his records by a 
preponderance  of  the  evidence.    The  applicant  alleged  that  he  was  unjustly  given  a 
general discharge for shirking after he refused to perform more drills than the 48 that he 
obligated  himself  to  perform  annually  upon  his  enlistment.    However,  the  Board’s 
review of the case has revealed no merit in the applicant’s claims. His Annual Retire-
ment Point Statement for the anniversary year ending on June 20, 1973, and his CO’s 
letter  to  the  District  Commander  dated  May  27,  1973,  show  that  by  the  end  of  that 
anniversary year he had 10 unexcused absences since he had earned only 38 drill points 
since  June  21,  1972.    Moreover,  the  record  shows  that  when  his  command  scheduled 
him  for  extra  drills  so  that  he  could  make  up  his  unexcused  absences,  the  applicant 
refused to attend.  
 
 
The  applicant  alleged  that  his  claim  is  proved  by  the  fact  that,  when  he 
missed his drill weekend of November 10 and 11, 1973, he was ordered to drill the fol-
lowing weekend.  However, even assuming that some reservists were assigned to aug-
ment the crew of the cutter every weekend of the year, this fact would not prove that 
the applicant himself was scheduled to drill in excess of what was necessary for him to 
make up for his past unexcused absences from drill. 
 
 
 According to the CO’s letter to the Commandant, by March 24, 1974, the 
applicant  had  accumulated  15  unexcused  absences  and  he  had  missed  35  scheduled 
drills and make-up drills since June 21, 1973.  The CO also wrote that the applicant’s 
“non-performance  of  assigned  orders  has  followed  a  set  shirking  pattern,  such  that 
virtually every month, during the last six months, he has had to be telephoned at his 
home, if he can be  found at all, on the day of his assigned drill  and questioned as to 
why  he  failed  to  report  on  increment  drill  orders  or  EIOD  orders  for  that  particular 

8. 

month.”  The applicant’s final Annual Retirement Point Statement indicates that he per-
formed only two drills during his last three months in the Coast Guard. 
 
The applicant alleged that he was never warned about his unsatisfactory 
 
performance  or  the  proposed  discharge.    However,  letters  in  his  record  show  that  he 
was  counseled  in  writing  about  his  unsatisfactory  participation on  May  19,  1973,  and 
again on November 12, 1973, and that he was advised of his pending general discharge 
for shirking on August 2, 1974, and given thirty days to submit an objection to the dis-
charge.    The  latter  letter  was  sent  to  him  by  certified  mail  with  a  return  receipt 
requested,  and  it  was  sent  to  the  same  address  that  the  applicant  used  as  a  return 
address  on  the  envelop  in  which  he  finally  submitted  his  objection  on  September  23, 
1974,  more  than  three  weeks  late.    Therefore,  the  Board  finds  that  the  applicant  was 
timely counseled and received due process under Article 12-B-12 of the Personnel Man-
ual then in effect. 
 
 
The CO reported to the District Commander that the applicant had been 
“nothing  but  a  time-consuming  administrative  problem  and  a  liability  to  the  Coast 
Guard Reserve since his reporting to this Unit.”  The applicant has submitted nothing to 
overcome the presumption of regularity afforded his CO’s determinations and charac-
terization of his service at Encino.  He has submitted no evidence to support his claim 
that his general discharge for shirking is erroneous or unjust.1 
 
 
10.  Accordingly, the Board finds that it is not in the interest of justice to waive 
the statute of limitations in this case because the applicant failed to justify his long delay 
in  seeking  relief,  and  he  cannot  prevail  upon  the  merits.    Therefore,  the  applicant’s 
request should be denied. 

9. 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
1 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  SA  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

correction of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 

 

 
 

 

 
 

 

 
 

 
 

 

 
 

 
 

 
 

 
 

  

 
 

 
 

 
 

 

 
David Frost 

 

 

 
Patrick Kernan 

 

 

 
Darren Wall