DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-132 
 
xxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxx 

 

 

FINAL DECISION 

 
AUTHOR:  Ulmer, 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.  The Chair docketed the case on June 16, 2006, 
upon receipt of the completed application and military records. 
 
 
ed members who were designated to serve as the Board in this case.  
     

This final decision, dated February 15, 2007, is signed by the three duly appoint-

APPLICANT'S REQUEST FOR RELIEF 

 
 
The  applicant  asked  the  Board  to  upgrade  his  1943  ordinary  discharge1  to  an 
honorable discharge.  The applicant was a Reservist in the Coast Guard who was called 
to active duty on April 21, 1942.   He was discharged by reason of physical disability on 
July 24, 1943.2 
 
 
In  support  of  his  request  for  an  upgrade  of  his  discharge,  the  applicant  stated 
that he earned an overall final average mark of 4 in conduct and 3.2 in proficiency (4 
being the highest mark at that time) and that the character of his service was excellent.  
He further stated the following: 
 

I  live  in  the  state  of  Nevada  and  for  a  discount  on  my  Home  Owners 
property  tax  and  car  registration,  I  [need]  my  discharge    [to]  say 

                                                 
1    In  BCMR  No.  132-096,  the  Board  found  that  under  the  Personnel  Manuals  of  1934,  1940,  and  1943, 
ordinary  discharges  were  given  only 
(2) 
misconduct/malingering." 
2   The applicant's military record does not contain a DD Form 214 discharging him from active duty.  The 
United States Archivist prepared a Certificate of Military Service for the applicant on April 20, 2006.   

for  "(1)  unsatisfactory  performance/conduct,  and 

Honorable. 
 
I was under the impression that an ordinary discharge was honorable at 
the  time  of  my  discharge.    I  was  disabled  in  the  line  of  duty  and 
discharged  as  a  signalmen  2  class,  that's  5  ratings  higher  than  when  I 
enlisted.    

 
 
On  October  2,  2005,  the  Judge  Advocate  General  (JAG)  relying  on  a 
memorandum  from  the  Commander,  Coast  Guard  Personnel  Command  (CGPC) 
recommended that relief be granted to the applicant.   The JAG also adopted the facts 
and analysis provided by CGPC, which were attached as Enclosure (1) to the advisory 
opinion.  In recommending relief, CGPC noted that the application was untimely, but 
appeared to accept the applicant's explanation that he did not discover the alleged error 
until January 2006 when applying for certain tax assessment discounts from the State of 
Nevada.    CGPC  stated  that  a  complete  review  of  the  applicant's  record  reveals  no 
adverse  actions  during  his  enlistment  and  that  his  discharge  was  due  to  a  physical 
disability.  CGPC further stated: 
 

Applying  the  standard  currently  in  place  for  processing  personnel  for 
physical  disability  in  conjunction  with  the  applicant's  service  record,  he 
most likely would be awarded an honorable discharge.  In the interest of 
justice  the  Coast  Guard  recommends  that  the  applicant  be  issued  a  new 
discharge  certificate  reflecting  an  honorable  discharge  from  the  Coast 
Guard Reserve.   

On October 16, 2006, the Board received a statement from the applicant agreeing 

 
 
with the relief recommended by the Coast Guard.   
 

FINDINGS AND CONCLUSIONS 

(analysis) 

 

The BCMR has jurisdiction of this case pursuant to section 1552 of title 10 of the 
United States Code, but the application was not timely.   To be timely, an application for 
correction must be filed within three years of the date the alleged error or injustice was, 
or should have been, discovered.  See 10 U.S.C. § 1552;  33 CFR  § 52.22.   The applicant 
alleged that he did not discover the alleged error until January 2006 when applying for 
certain property tax discounts from Nevada.  He stated, however, that he thought at the 
time of his discharge that an ordinary discharge was an honorable discharge.  There is 
no evidence in the military record to contradict the applicant's date of discovery.  In this 
regard,  the  military  record  does  not  contain  a  DD  Form  214  or  other  discharge 
document that is normally prepared and delivered to the applicant contemporaneous 
with  his  separation.  With  no  such  discharge  documents  in  the  military  record,  the 
preponderance of the evidence weighs in the applicant's favor that he did not discover 

the  alleged  error  until  2006.  The  Board  accepts  the  applicant's  statement  given  under 
penalty of perjury with respect to discovery of the alleged error.   

 
Even  if  the  applicant's  declaration  of  when  he  discovered  the  error  were  not 
persuasive, the Board could still consider the application on the merits, if it found it 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," although "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.  Based on a cursory review of 
the merits and the JAG's recommendation for granting relief, the Board finds that the 
applicant's application has strong merit and that it is in the interest of justice to waive 
the  statute  of  limitations,  notwithstanding  the  applicant's  reasons,  or  lack  thereof,  for 
not filing his application sooner.   

 
Upon  a  full  review  of  the  merits,  the  Board  finds  that  the  applicant's  ordinary 
discharge should be upgraded to honorable.  As noted in BCMR No. 132-096, under the 
Personnel  Manuals  of  1934,  1940,  and  1943,  ordinary  discharges  were  given  only  for 
unsatisfactory performance, misconduct, or malingering.  In BCMR 132-096, the Board 
found that the Coast Guard committed an error by discharging that applicant with an 
ordinary discharge due to a physical disability.  The Board stated in that case that an 
ordinary discharge was not appropriate for a physical disability discharge.  The Board 
having  reviewed  the  applicant's  military  record  is  satisfied  that  there  are  no 
unfavorable personnel actions recorded therein and that his discharge was by reason of 
physical disability that was not due to his misconduct.  The Coast Guard committed an 
error by discharging him with an ordinary discharge.    
 
 
In addition, the Board agrees with the JAG and finds that it would be an injustice 
not to upgrade the applicant's ordinary discharge.  The Board agrees with the advisory 
opinion that today a member discharged under circumstances similar to the applicant's 
would  most  probably  receive  an  honorable  discharge.  Under  Article  12.B.2.f.  of  the 
Personnel Manual, a member discharged today by reason of physical disability, with no 
disciplinary  record  and  with  final  average  factor  marks  of  4.0  in  conduct  and  3.2  in 
proficiency of rating would receive an honorable discharge.  
 
 
 
The  Board's  application  of  the  current  standards  for  discharge  to  this  case  is 
consistent  with  the  guidance  provided  by  the  Deputy  General  Counsel  in  a  1976 
Memorandum  entitled  "BCMR  and  Clemency."    In  this  memorandum  the  Deputy 
General Counsel, who was then the Secretary's delegate, stated that "the Board 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-a-
vis  the  conduct  in  response  to  which  it  was  imposed."    After  considering  all  the 

evidence in the case, the Board is satisfied that physical disability was the sole ground 
for the applicant's discharge from the Coast Guard and that under current regulations 
he  would  receive  an  honorable  discharge.    The  Board  finds  no  basis  for  refusing  to 
upgrade the applicant's ordinary discharge to an honorable discharge.   
 
 
injustice in this case, and the applicant is entitled to relief.   

Accordingly,  the  Board  finds  that  the  Coast  Guard  committed  an  error  and/or 

 

ORDER 

 
 

 
 

 
 

 
 

        

 
 Patrick B. Kernan 

 

 
The  application  of  former  xxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 
 
military record is granted.  The Coast Guard shall correct his record to show that he was 
honorably discharged from the Coast Guard.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 J. Carter Robertson 

 
 Richard Walter