DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-139 
 
xxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxx 
 

 

 

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 30, 2006, 
upon receipt of the applicant's completed application and military records.1 
 
 
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  undesirable  discharge  to  an 
honorable discharge. The applicant enlisted in the Coast Guard Reserve on December 
26, 1941, and was discharged on April 18, 1945, with an undesirable discharge due to 
unfitness.  
 
 
The applicant stated that he enlisted at age seventeen and was involved in the 
invasion  of  Normandy,  with  continued  action  in  France.    He  stated  that  during  his 
service  he  began  having  serious  trouble  with  his  feet  and  was  treated  at  a  Marine 
hospital.    He  alleged  that  hospital  personnel  indicated  that  he  would  be  getting  a 
medical discharge, but instead he was returned to duty.  The applicant stated that he 

                                                 
1   The applicant sought relief from the Board in an earlier application BCMR No. 326-89.  The Chairman 
denied the applicant's request under 33 CFR § 52.15-5(a) of the Board rules at that time.  This provision 
permitted  the  Chairman  to  deny  an  application  if  he  determined  that  the  applicant  failed  to  contain 
sufficient  evidence  to  demonstrate  probable  error  or  injustice  or  if  it  was  untimely  and  the  interest  of 
justice  did  not  require  a  waiver  of  the  statute  of  limitations.  The  denial  was  without  prejudice  to  the 
applicant, if he resubmitted the request with new relevant evidence.  The current rules do not permit the 
Chair to deny an application on the merits.   

became upset with the lack of care and went AWOL to recuperate.  He stated that after 
approximately  thirty  days  of  AWOL,  he  turned  himself  in  to  authorities.    When 
discharged, he was given an undesirable discharge rather than an honorable discharge.   
 
 
The  applicant  stated  that  after  his  discharge  from  the  Coast  Guard,  he 
volunteered for hazardous duty as a merchant seaman serving on ships that supported 
troops in the Korean conflict as well serving on an ammunition ship during the Vietnam 
conflict.   
 
 
following: 
 

With  respect  to  the  untimeliness  of  his  application,  the  applicant  stated  the 

[I] was aware of the events at the time (in 1945) but failed to understand 
the significance of an undesirable discharge.  [I] respectfully request that 
the Board find it in the interest of justice to correct [my] discharge to one 
of at least a general discharge under honorable conditions both for [my] 
reputation  to  ensure  that  [I  am]  eligible  for  benefits  that  [I]  would  have 
otherwise have earned by virtue of [my] several years of wartime service    
. . .  [I] should not be stigmatized by an undesirable discharge given [my] 
extensive service prior to [my] foot problem, [my] relatively brief AWOL, 
and [my] subsequent merchant marine service for which [I was] awarded 
an Honorable Discharge by the Coast Guard . . .    

 

SUMMARY OF RECORD AND SUBMISSIONS 

 
 
The applicant enlisted in the Coast Guard on December 26, 1941.  On January 25, 
1945, a Board of Medical Survey (Medical Survey) determined that the applicant had a 
constitutional psychopathic inferiority without psychosis, and should be discharged on 
the  ground  that  he  was  "emotionally  unsuited  for  service."    The  Medical  Survey  also 
determined that the applicant was responsible for his actions at the time he committed 
the absence offenses, and that the applicant was competent to stand trial.   
 
 
The applicant's record indicates that prior to the Medical Survey, he had several 
periods of unauthorized absence that resulted in non-judicial punishment or summary 
court-martial.  On September 5, 1944, the applicant was convicted  at summary court-
martial  of  being  AWOL  for three  hours.   On  June  29,  1944,  he was  punished  at  deck 
court  for  leaving  his  assigned  post  without  authority.    On  December  8,  1944,  he  was 
convicted  at  summary  court-martial  of  a  29-day  AWOL  and  of  disobeying  a  lawful 
order.  His sentence included two months of confinement and a loss of $30 per month 
for  six  months.    The  convening  authority  approved  the  sentence  except  that  the 
confinement  was  suspended  for  a  period  of  six  months.    Due  to  a  subsequent 
unauthorized  absence  from  December  13-26,  1944,  the  suspension  was  vacated,  and 
according  to  the  record  the  applicant  was  required  to  serve  the  two  months  of 

confinement.    
 
 
On  April  12,  1945,  the  Commandant  disapproved  the  recommendation  to 
discharge the applicant by reason of physical disability.  The Commandant stated that 
since  the  Medical  Survey  found  that  the  applicant  was  mentally  responsible  for  the 
alleged  offenses  committed,  an  undesirable  discharge  was  appropriate. 
  The 
Commandant directed that the applicant be given an opportunity to submit a statement 
in his own behalf with respect to the undesirable discharge.    
 
 
On April 18, 1945, the applicant submitted a statement objecting to the discharge.  
In this regard, he stated the following:  "During the invasion of  Normandy, we were 
attacked by enemy aircraft.  They started dropping bombs and we got a near miss.  And 
the concussion from the bombs affected me.  And from then on, I started getting into 
trouble for which wasn't my fault.  I've been in the Service, three and a half years, and 
have  had  a  good record  up  until  that  day.   I  feel  that  I  don't  deserve  an  undesirable 
discharge."    The  applicant  was  discharged  on  April  18,  1945,  with  an  undesirable 
discharge. 
     
 
On  November  15,  1946,  the  Discharge  Review  Board  (DRB)  issued  a  decision 
denying the applicant's request for an upgrade of his undesirable discharge.  The DRB 
noted that the applicant's final average marks were 2.68 in proficiency in rating and 3.52 
in conduct.  The DRB decision further noted that the applicant had served satisfactorily 
at various shore stations during his career, but also noted his disciplinary record after 
being transferred to a cutter.   The Board of Medical Survey did not persuade the DRB 
to upgrade the applicant's discharge.  In this regard, the DRB stated the following: 
 

In reviewing all of the available evidence including the war history of the 
[cutter] during the period the petitioner served on that ship, the Board is 
of  the  opinion  that  [the  applicant]  exaggerated  to  the  Medical  Survey 
Board, as indicated in his health record, the amount of combat to which he 
was  subjected  and  that  he  was  a  so-called  "ineffectual"  on  board.      On 
return  to  the  United  States  the  ship  transferred  him  to  shore  duty,  thus 
removing him from any further exposure to enemy action.  Having been 
placed in a position where he would not be subject to further combat, and 
a Medical Survey Board finding him responsible for his actions, the [DRB] 
concludes that the action of Headquarters in issuing him an undesirable 
discharge was correct. 

  

VIEWS OF THE COAST GUARD 

 
On October 23, 2006, the Board received the views of the Coast Guard from the 
 
Judge  Advocate  General  (JAG)  who  advised  that  the  applicant's  discharge  should  be 
upgraded  from  undesirable  to  a  general  discharge  under  honorable  conditions,  as 

recommended by CGPC.   The JAG adopted the analysis provided by the Commander, 
Coast Guard Personnel Command (CGPC), which was attached as Enclosure (1) to the 
advisory  opinion.    CGPC  first  noted  that  the  application  was  untimely  and  that  it 
should be denied for that reason.  However, CGPC provided an opinion that included a 
grant for partial relief, should the Board consider the case on the merits.  
 
 
CGPC  stated  that  the  applicant's  discharge  appears  proper  and  without  error.  
CGPC  noted  that  while  the  applicant  contended  that  he  suffered  from  foot  problems 
and was to receive a medical discharge due to that ailment, there is no corroboration in 
the medical record that the applicant suffered from foot problems.  CGPC further stated 
the following: 
 

The  applicant  was  discharged  from  the  Coast  Guard  on  April  18,  1945 
with  an  undesirable  discharge.    The  Applicant  then returned  to his  pre-
Coast  Guard  service  with  the  Merchant  Marine  from  May  11,  1945 
through  July  3,  1945.    Pursuant  to  Public  Law  95-202,  personnel  who 
served  in  the  U.S.  Merchant  Marine  during  armed  conflict  between 
December  7,  1941  and  August  15,  1945    .  .  .  shall  [have  the  service] 
considered [as] active duty for provisions of the Veterans Administration.  
Based upon this authority in 1989, the applicant was issued a DD-214 and 
honorable discharge certificate for his service in the U.S. Merchant Marine  
. . .   
 
The applicant petitioned the [DRB] in 1947 to upgrade his discharge, and 
his  request  was  denied.    The  applicant's  record  of  service  during  his 
tenure  with  the  Coast  Guard  included  numerous  periods  of  absence 
without  leave  and  [deck  and  summary  courts].    The  applicant's  service 
does not meet the criteria for an honorable discharge.  However, given the 
applicant's record and the lack of a punitive discharge by a court-martial it 
is  unlikely  that  the  applicant  would  have  received  a  discharge  of  worse 
character  than  a  general  discharge  if  he  were  processed  by  today's 
standards.  Therefore, the Coast Guard is not opposed to upgrading the 
applicant's type of discharge to general under honorable conditions.   

CGPC  recommended,  in  the  interest  of  justice,  that  the  applicant's  type  of 

 
 
discharge be upgraded to a general discharge under honorable conditions.  
 

APPLICANT'S REPLY TO THE COAST GUARD VIEWS 

On  October  25,  2006,  the  Board  sent  a  copy  of  the  Coast  Guard  views  to  the 

 
 
applicant for a response.  The Board did not receive a response from the applicant.   
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
submissions of the applicant and the Coast Guard, the military record of the applicant, 
and applicable law. 
 
 
1.  The  BCMR  has  jurisdiction  of  the  case  pursuant  to  section  1552  of  title  10, 
United States Code.  The applicant sought relief from the Board in an earlier application 
BCMR No. 326-89.  The Chairman denied the applicant's request under 33 CFR § 52.15-
5(a) of the Board rules at that time.  This provision permitted the Chairman to deny an 
application if he  determined that the applicant failed to submit sufficient evidence to 
demonstrate probable error or injustice or if it was untimely and the interest of justice 
did not require a waiver of the statute of limitation.  However according to the decision 
in BCMR No. 326-89, 33 CFR § 52.15-5(b) stated that a Chairman's denial was without 
prejudice if the applicant presented new relevant information. In 1990, the Board's rules 
were changed to allow for further consideration of a Chairman's denial if requested by 
the applicant upon the submission of further evidence (the reference to relevance being 
omitted).  In 2003, the Chairman's denial was removed entirely from the Board's rules, 
leaving  the  issuance  of  all  final  decisions  to  the  Board.  The  applicant's  request  never 
received the full review on the merits by the Board that he would be entitled to under 
the current rules.  Therefore, as a matter of equity, his current application was docketed 
as BCMR No. 2006-139. 
 
 
 2.  The application was not timely. To be timely, an application for correction of 
a military record must be submitted within three years after the applicant discovered or 
should  have  discovered  the  alleged  error  or  injustice.    See  33  CFR  52.22.      This 
application  was  submitted  approximately  sixteen  years  after  the  Chairman  issued  a 
decision denying the applicant's request for an upgrade of his discharge.  The applicant 
knew  the  facts  of  his  discharge  since  his  separation  from  the  Service  in  1945  and 
certainly knew the facts of his discharge when the Chairman denied his request for an 
upgrade in 1990.   
 
 
3.   However, the Board may still consider the application on the merits, if it finds 
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 
stated 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.    
 
4.  The applicant's explanation in support of a waiver of the statute in the interest 
 
of  justice  is  not  persuasive.    In  this  regard,  the  Board  notes  that  the  record  does  not 
support  the  applicant's  argument  that  he  failed  to  understand  the  significance  of  an 

in 

forth 

undesirable  discharge  at  the  time  or  shortly  after  his  discharge.    The  fact  that  the 
applicant filed earlier applications with the DRB and the BCMR supports a finding that 
as early as 1946 he was aware of the type of discharge he received and that it was not an 
honorable one.   However, Allen v. Card requires the Board to perform a cursory review 
of the merits in determining whether it is in the interest of justice to waive the statute. 
Based  upon  a  cursory  review  of  the  merits  that  included  the  recommendation  of  the 
Coast  Guard  to  upgrade  the  applicant's  discharge  to  a  general  discharge  under 
honorable  conditions,  the  Board  finds  that  it  is  in  the  interest  of  justice  to  waive  the 
statute of limitations and proceed to a full review of the merits. 
  
 
5.    The  applicant  does  not  allege  any  specific  error  on  the  part  of  the  Coast 
Guard,  and  the  Board  finds  that  the  Coast  Guard  did  not  commit  an  error  by 
discharging the applicant with an undesirable discharge in 1945.  However under the 
standard  set 
the  Department  of  Transportation  General  Counsel's 
memorandum of July 2, 1976, the Board may upgrade a discharge if it is "adjudged to be 
unduly severe in light of contemporary standards,” but, “the Board should not upgrade 
a discharge unless it is convinced, after having considered all the evidence [including 
changes in community mores, civilian as well as military, since the time of discharge, as 
well  as  post-service  conduct,  in  addition  to  the  applicant’s  record],  that  in  light  of 
today’s standards, the discharge was disproportionately severe vis-à-vis the conduct in 
response to which it was imposed.” 
 
 
6.    After  having  reviewed  all  the  evidence,  the  Board  is  convinced  that  under 
today's standards it is very unlikely that a member with circumstances similar to the 
applicant's would receive an other than honorable discharge, today's equivalent of an 
undesirable discharge, for committing and being punished for absence offenses.  In fact 
Article 12.B. 2.f.1.b of the Personnel Manual states that the Service will not necessarily 
deny a member an honorable discharge solely for a specific number of courts-martial 
convictions or actions under Article 15 of the UCMJ during a current enlistment.  More 
importantly, the Deputy General Counsel in BCMR No. 322-91 stated, "upgrades from 
bad  conduct  discharges  have  been  customarily  granted  by  the  Board  where  absences 
were involved. See BCMR 89-78; BCMR 154-85; BCMR 8-80; BCMR 24-81, and BCMR 
240-85."  She  noted  that  Chapter  12  (Separations  from  the  Service)  of  the  Personnel 
Manual  did  not  prohibit  awarding  a  general  discharge  under  the  circumstances 
described in BCMR No. 322-91.2   
 
 
7.  In addition to committing only short absence offenses, other factors favorable 
to the applicant and support an upgrade of his discharge are (1) the fact that his final 
                                                 
2      Also  see  BCMR  No.  34-93  where  the  Board  upgraded  a  1944  undesirable  discharge  to  a  general 
discharge  under  honorable  conditions.    In  that  case,  the  applicant  had  three  captain's  masts  for 
unauthorized  absences  and  insubordination  and  a  deck  court  for  conduct  prejudicial  to  discipline.    In 
granting  relief  as  recommended  by  the  Coast  Guard,  the  Board  stated  "The  applicant  is  entitled  to 
clemency after more than 40 years in the status of one who has an undesirable discharge."   

average  marks  satisfied  those  for  granting  a  general  discharge,  (2)  the  fact  that  he 
served for more than three years during WWII, some of which was satisfactory, (3) the 
fact  that  he  had  a  diagnosed  preexisting  medical  condition  that  contributed  to  his 
inability to adapt to war, and (4) the fact that he served during wartime in the Merchant 
Marine earning an honorable discharge certificate.  
 
 
 8.   In light of today's standards for determining the type of discharge to which a 
member  is  entitled  and  the  Deputy  General  Counsel's  decision  in  BCMR  322-91,  the 
Board  agrees  with  the  Coast  Guard  that  it  is  in  the  interest  of  justice  to  upgrade  the 
applicant's  undesirable  discharge  to  a  general  discharge  under  honorable  conditions. 
There is nothing in the record to suggest that the applicant's post service conduct would 
cause the Board concern in upgrading this discharge. 
 
 
recommended by the Coast Guard.   

9.    Accordingly,  the  Board  finds  that  the  applicant  is  entitled  to  relief 

 
 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Patrick B. Kernan 

 

 
 
The  military  record  of  former  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCGR, 
shall be corrected show that he was discharged from the Coast Guard on April 18, 1945, 
with a general discharge under honorable conditions.  The Coast Guard shall make the 
necessary changes to his record to effect this correction.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 J. Carter Robertson 

 
 Richard Walter