DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-157 
 
XXXXXXXXXXXXXX 
XXXXXXXXXXX, FN/E-3 (former) 
   

FINAL DECISION 

 
AUTHOR:  Hale, 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 August 4, 2006, 
upon receipt of the applicant’s completed application for correction. 
 
 
ed members who were designated to serve as the Board in this case. 
 

This final decision, dated February 28, 2007, is signed by the three duly appoint-

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The applicant, a former fireman (FN) who served a little more than two years in 
 
the Coast Guard, asked the Board to correct his record by upgrading his 1979 discharge, 
which was issued “under other than honorable conditions.”  The applicant stated that 
he wants his discharge upgraded to “bring a little calmness” to his life, and he admitted 
that  that  the  Coast  Guard  did  not  commit an  error  when  it  discharged  him  for  being 
AWOL (absent without leave) for nearly a year.  He further stated that he knows it was 
wrong to go AWOL and that he truly regrets having done so.  He did not explain his 
long delay in seeking the requested correction.  
 

SUMMARY OF THE RECORD 

 

The applicant enlisted in the Coast Guard on April 25, 1977.  On July 31, 1978, he 
went AWOL from his cutter and the Coast Guard declared him a deserter on August 29, 
1978.  On July 17, 1979, he was apprehended by Coast Guard intelligence agents and 
charged with violating Article 85 of the Uniform Code of Military Justice (UCMJ).  The 
charge  sheet  alleged  that  the  applicant  “did,  on  or  about  0730,  31  July  1978,  without 

authority and with intent to remain away therefrom permanently, absent himself from 
his unit … and did remain so absent in desertion until he was apprehended on or about 
1122, 17 July 1979.” 

 
On  August  2,  1979,  the  applicant  submitted  a  request  to  the  Commandant  in 
which he asked to be discharged under Article 12.B.21. of the Coast Guard Personnel 
Manual in lieu of a trial by court martial.1  In his request, he acknowledged that he was 
being  represented  by  legal  counsel,  and  that  if  his  request  was  approved,  he  would 
receive a discharge under other than honorable conditions for the good of the Service in 
lieu of trial by court martial.  In a supporting statement accompanying his request for 
discharge, the applicant further stated “I do not wish, or have any desire whatsoever, to 
stay in the United States Coast Guard,” and “I want any discharge that provide [sic] to 
me knowing that it could ruin my civilian life.  If under any circumstances that I cannot 
get a discharge I will go AWOL again until I receive a discharge.” 

 
On  October  15,  1979,  the  Commandant  approved  the  applicant’s  request  to  be 
discharged from the Coast Guard under other than honorable conditions for the good of 
the  Service.    On  October  18,  1979,  the  applicant  was  discharged  pursuant  to  Article 
12.B.21. of the Coast Guard Personnel Manual.  His DD 214 indicates that his character 
of service was “under other than honorable conditions.” 
 

VIEWS OF THE COAST GUARD 

 
On  December  14,  2006,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
 
submitted  an  advisory  opinion  in  which  he  adopted  the  findings  of  the  Coast  Guard 
Personnel  Command  (CGPC)  and  recommended  that  the  Board  deny  the  applicant’s 
request.  The JAG argued that the applicant failed to submit a timely application and 
failed to supply any justification for the lengthy delay.  Moreover, CGPC stated that the 
applicant voluntarily requested a discharge in lieu of court martial after being AWOL 
for  nearly  one  year.    CGPC  stated  that  the  Commandant  approved  the  applicant’s 
discharge  request  and  he  was  properly  separated.   Finally,  CGPC stated,  “Due  to  the 
lack of contradictory information from the applicant, the applicant’s military record is 
presumptively correct and his discharge should stand.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On January 4, 2007, the Chair sent the applicant a copy of the views of the Coast 
Guard  and  invited  him  to  respond  within  30  days.    The  BCMR  did  not  receive  a 
response. 
 
                                                 
1 Article 12.B.21. of the Coast Guard Personnel Manual provides that “An enlisted member may request a 
discharge under other than honorable conditions for the good of the Service in lieu of action under the 
UCMJ if punishment for the alleged misconduct would result in a punitive discharge.” 

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: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.   

 
2. 

 An application to the Board must be filed within three years of the day 
the  applicant  discovers  the  alleged  error  in  his  record.    10  U.S.C.  §  1552(b).    The 
applicant was issued a DD 214 on October 18, 1979, with a discharge characterized as  
“under other than honorable conditions.”  This information is clearly marked on the DD 
214  and  thus  he  knew  or  should  have  known  that  he  had  received  a  discharge 
characterized as other than honorable in 1979.  Therefore, the Board finds that the appli-
cation  was  filed  more  than  23  years  after  the  statute  of  limitations  expired  and  is 
untimely. 

 
3. 

Under 10 U.S.C. § 1552(b), the Board may waive the three-year statute of 
limitations 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 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 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, 165.  See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).  
 

4. 

The applicant did not allege that his discharge from the Coast Guard was 
in error or unjust.  In his application for correction, he merely stated that he knows it 
was  wrong  to  go  AWOL  and  that  he  wants  his  discharge  upgraded  to  bring  a  little 
“calmness”  to  his  life.    He  did  not  explain  the  long  delay  in  seeking  the  requested 
correction. 
 

5. 

A cursory review of the record indicates the Coast Guard committed no 
error  or  injustice  in  awarding  the  applicant  a  discharge  under  other  than  honorable 
conditions.    The  record  indicates  that  the  applicant  went  AWOL  from  July  31,  1978, 
until he was apprehended on July 17, 1979.  On August 2, 1979, with the assistance of 
legal  counsel,  the  applicant  asked  the  Commandant  for  a  discharge  in  lieu  of  court 
martial.  He threatened to go AWOL again if not discharged.  His request was granted 
and he was discharged shortly thereafter.   

 
6. 

On  July  8,  1976,  the  delegate  of  the  Secretary  established  the  following 
policy  concerning  the  upgrading  of  discharges:    “[T]he  Board  should  not  upgrade 

discharges solely on the basis of post-service conduct.”  The delegate of the Secretary 
stated that the Board may upgrade a discharge if it is judged to be unduly severe in light 
of contemporary standards.  The Board notes that the applicant did not allege that his 
discharge  characterized  as  under  other  than  honorable  conditions  is  unduly  severe 
under  modern  standards.    Moreover,  the  applicant  could  have  received  the  same 
discharge under contemporary standards.  In addition, under Article 85 of the UCMJ, 
he could have received a dishonorable discharge, forfeiture of all pay and allowances, 
and  confinement  for  three  years.    Thus,  his  discharge  under  other  than  honorable 
conditions  was  lenient  in  light  of  the  punishment  which  could  have  been  imposed 
under Article 85 the UCMJ. 
 

7. 

 Accordingly, due to the lengthy delay and the probable lack of success on 
the merits of his claim, the Board finds that it is not in the interest of justice to waive the 
statute of limitations in this case.  Although the Board notes that the applicant is 
regretful about his desertion, the case should be denied because it is untimely.  

 

ORDER 

 

The application of former FN XXXXXXXXXXXXXXXX, xxxxxxxxxxx, USCG, for 

correction of his military record is denied. 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

  

 
 William R. Kraus 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 
 Dorothy J. Ulmer 

 

 

 
 Thomas H. Van Horn