DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-131 
 
xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxx   

 

 
 

 

FINAL DECISION 

 
AUTHOR:  Andrews, J.  
 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section 425 of title 14 of the United States Code.  The Chair docketed the case on June 16, 2006, 
upon receipt of the applicant’s application and military records.   
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  May  31,  2007,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  who  received  an  uncharacterized  discharge  with  an  RE-4  reenlistment 
code (ineligible to reenlist) on December 9, 2005, before completing boot camp, asked the Board 
to correct his record by reinstating him on active duty and by upgrading his reenlistment code to 
RE-1 (eligible to reenlist).   
 

The applicant alleged that he was discharged during the sixth week of boot camp because 
he had “failed to inform [his] recruiter of a false arrest that [his] legal counsel advised not to 
disclose because from her perspective the arrest never occurred.”  The applicant stated that his 
“criminal history record has been expunged.” 

 
The applicant alleged that it “was never [his] intention to be dishonest or deceitful in any 
way concerning [his] arrest.  It had been characterized from the beginning as a false arrest and 
based on the counsel [he] had received from [his] attorney, [he] did not realize that a case had 
been established against [him] and the arrest had been recorded on [his] criminal history record 
on Guam.  At the time of [his] accession, [he] did not think that the arrest had been recorded as 
an arrest or that fact that [his] not disclosing the incident would result in a discharge from the 
Coast Guard.” 

The  applicant  alleged  that  the  “false  arrest”  occurred  at  about  1:15  a.m.  on  Tuesday, 
December 15, 2004, when he was pulled over for speeding by a police officer.  The applicant 
alleged that for no apparent reason, the officer had him get out of his car and gave him a sobriety 
test that involved standing straight with his arms to his sides and following a pen with his eyes.  
Then the police officer handcuffed him and his passengers and took them to a holding cell.  The 
applicant alleged that when an officer took him out of the cell and read him his rights, he asked if 
he could call his father, but since his father was not an attorney, the officer did not let him.  Later 
an officer told him that he had been arrested for driving under the influence (DUI) and should be 
detained but that, because the officer knew the applicant’s girlfriend, the applicant was going to 
be booked and released.  Then he was taken to a precinct office where he was finger printed, 
photographed, and released to his father. 

 
Then  in  September  2005,  a  month  before  he  was  supposed  to  begin  boot  camp,  he 
“sought out legal help to cover [his] basis.”  His case had not yet been processed and it was not 
clear that it would go to trial.  His public defender told him “not to let [his] court date hold [him] 
back, and that the case has a big chance of being thrown out.”  She had him sign a waiver giving 
her authority to appear on his behalf at trial should the case be processed.  

 
On January 25, 2006, after he was discharged from the Coast Guard, the charges against 
him were “thrown out because of lack of probable cause.”  On February 22, 2006, the charges 
were expunged.  The applicant submitted a copy of a court order stating that it “is hereby ordered 
that this case be and is hereby dismissed and any and all records relating to the above-numbered 
Superior Court case and events described in Police Report No. PR04-25857, whereby [the appli-
cant] is alleged to have violated the law, shall be expunged.” 
 

On October 24, 2005, the applicant enlisted in the Coast Guard and began boot camp.  He 

 
completed and signed a questionnaire on which he responded “No” to the following questions: 
 
•  Have you ever been charged with or convicted of any felony offense? 
•  Are there currently any charges pending against you for any felony offense? 
•  Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs? 
In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) 
• 
not listed in response to [the questions] above?  (Leave out traffic fines of less than $150 unless 
the violation was alcohol or drug related.) 
 
The applicant also signed a Page 7 (form CG-3307) that day under the following statement. 
 

I hereby certify that all information on my enlistment documents is current and accurate.  I have 
not had any involvement with the police or had any changes in dependency unless noted on these 
documents.    I  understand  withholding  information  is  punishable  under  the  Uniform  Code  of 
Military Justice (UCMJ) and may result in less than honorable discharge for fraudulent enlistment. 
 
On  December  9,  2005,  after  the  Coast  Guard  discovered  that  the  applicant  had  been 
arrested  and  had  a  criminal  charge  pending  against  him,  the  applicant  received  an  “uncharac-

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

 

On October 23, 2006, the Judge Advocate General of the Coast Guard recommended that 
the Board deny the applicant’s request.  In so doing, he adopted the facts and analysis of the case 
provided in a memorandum by the Coast Guard Personnel Command (CGPC). 

 
CGPC  argued  that  the  applicant  “acknowledges  in  his  statement  to  the  Board  that  he 
deliberately concealed [information about his arrest] from the Coast Guard.”  CGPC pointed out 
that although the applicant alleged that his attorney told him he was not required to reveal the 
arrest, the applicant did not submit anything to support this allegation.  Moreover, CGPC argued 
that the “ultimate resolution of his case does not invalidate the applicant’s deliberate conceal-
ment  of  information  to  gain  fraudulent  entry  into  the  Coast  Guard.”    CGPC  alleged  that  the 
applicant’s discharge and RE-4 code were in accordance with Coast Guard policy and that there 
is no reason to reinstate him or to upgrade his reenlistment code to RE-1. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On October 25, 2006, the Chair sent the applicant a copy of the views of the Coast Guard 

 
 
and invited him to respond within thirty days.   
 

terized” “entry level separation” with a JDA separation code and an RE-4 reenlistment code in 
accordance with Article 12.B.20. of the Personnel Manual. 
 

VIEWS OF THE COAST GUARD 

 

On November 30, 2006, the Board received a letter from the applicant’s congresswoman, 
who repeated the applicant’s allegation about the poor advice he received from his attorney and 
asked the Board to expedite its decision so that the applicant could pursue a career in the Coast 
Guard.    On  December  5,  2006,  the  Chair  informed  the  congressional  representative  that  the 
applicant had not yet responded to the views of the Coast Guard but could request an extension 
to do so.  The Chair also pointed out that a signed affidavit by the applicant’s attorney about the 
advice he allegedly gave the applicant might improve the applicant’s case before the Board. 
 
 
On January 2, 2007, the applicant requested an extension of the time to respond to the 
views of the Coast Guard so that he could get an affidavit from his attorney.  On January 3, 2007, 
the Chair granted the applicant 90-day extension of the original time to respond, through Feb-
ruary 22, 2007.  No response or further correspondence has been received. 
 

APPLICABLE REGULATIONS 

Article 12.B.18.b.2. of the Coast Guard Personnel Manual allows the Commander of the 

recruit training center to process a recruit for a misconduct discharge if the recruit 

 
[p]rocur[es] a fraudulent enlistment, induction, or period of active service through any deliberate 
material  misrepresentation,  omission,  or  concealment  which,  if  known  at  the  time,  might  have 
resulted  in  rejection.  …  Commanding  Officer,  Training  Center  Cape  May,  is  delegated  final 
discharge  authority  under  this  Article  in  these  specific  cases  for  members  assigned  to  recruit 
training or prior service training program. 
 

 

Article 12.B.20. of the Personnel Manual authorizes the Commander of the recruit train-
ing center to award “uncharacterized” “entry level” discharges to members with less than 180 
days of active duty who have demonstrated poor conduct during the enlistment process or boot 
camp.  Article 12.B.20. also authorizes recruits being discharged for “fraudulent entry into mili-
tary service” with the JDA separation code to receive “uncharacterized” discharges.  

 
The Separation Program Designator (SPD) Handbook, which is an incorporated part of 
the Coast Guard manual for completing DD 214s, COMDTINST M1900.4, authorizes only an 
RE-4 reenlistment code for any member being discharged for fraudulent entry. 
 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
military record and submissions, the Coast Guard's submissions, and applicable law: 
 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  
Because the applicant requested reinstatement on active duty—a correction that is not within the 
authority  of  the  Discharge  Review  Board  to  make—he  is  considered  to  have  exhausted  his 
administrative remedies under 33 C.F.R. § 52.13(b).  The application was timely.   

1. 

The applicant’s enlistment papers show that he denied having ever been arrested 
for or charged with a felony offense or any offense related to drugs and alcohol even though he 
had been arrested for DUI on December 15, 2004, and had a criminal charge pending against 
him.  The applicant again denied the arrest and charge by signing the Page 7 indicating that all 
the information he had provided previously was accurate and that he had “not had any involve-
ment with the police … unless noted on these documents.” 

The applicant alleged that the attorney who handled his DUI case advised him not 
to disclose the arrest to his Coast Guard recruiter.  He failed to support this allegation with any 
evidence.  Moreover, the applicant admitted that before he began boot camp, the attorney had 
him  sign  a  “waiver”  so  that  she  could  represent  him  in  his  absence  if  the  case  went  to  trial.  
Therefore, although the applicant may have hoped that the DUI charge would be dismissed and 
this wish was later fulfilled and his record expunged, the Board finds that when he signed his 
enlistment papers he knew that he had been arrested for DUI and that a DUI charge was pending 
against him and yet falsely denied this pertinent information on his enlistment papers.   
 

The applicant has not proved by a preponderance of the evidence that the Coast 
Guard  committed  error  or  injustice  in  awarding  him  an  uncharacterized  entry  level  separation 
with an RE-4 reenlistment code after he lied on his enlistment papers about having been arrested 
and charged with DUI.  Article 12.B.18. and 12.B.20. authorize the Commander of the training 
center to effect such discharges when recruits are found to have lied about important matters on 
their enlistment papers.  The pending DUI charge was certainly a fact that could have resulted in 
the applicant’s rejection for enlistment at that time.  Under the SPD Handbook, the RE-4 code is 
the only reenlistment code authorized for members being discharged for fraudulent enlistment. 

4. 

 
2. 

 
3. 

 
5. 

Accordingly, the applicant’s request should be denied. 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 

 

 
 

military record is denied. 
 

 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 

 

  

 
 Patrick B. Kernan 

 

 

 
 Donald A. Pedersen 

 

 

 
 Kenneth Walton