DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2006-158 
 
  xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx 

 

 

 

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 August 4, 
2006, upon receipt of the application and the applicant’s military records. 
 
 
who were designated to serve as the Board in this case. 
 

This final decision, dated March 30, 2007, is signed by the three duly appointed members 

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  misconduct  (shirking)  on  July  9,  1991,  to  an 
honorable discharge.  The applicant also complained about not being able to reenter the military.  
His reenlistment code is RE-4 (not eligible to reenlist).  He stated that until May 7, 2006, he was 
unaware that his discharge would prohibit him from reentering the military, and he now wants to 
enlist in the New Jersey National Guard. 

 
The  applicant  alleged  that  his  commanding  officer  (CO)  “failed  to  utilize  fair  and 
impartial judgment when considering my discharge.”  He stated that he joined the Reserve after 
graduating from high school in 1984 in order to save money for college.  However, in 1986, he 
decided to become a trooper for the New Jersey State Police.  Within a year, he was accepted, 
attended  the  academy,  and  was  assigned  to  a  highway  station  as  a  “general  road  trooper.”  
Unfortunately, State Police had a rotating work schedule and, as a new trooper, he was off work 
only one weekend per  month.  Therefore, his  work schedule strongly  conflicted with his drill 
schedule.  The applicant alleged that he found himself constantly asking senior troopers to switch 
shifts with him so that he could attend weekend drills, but they rarely agreed.  His sergeant was 
not willing to set his schedule so that he could attend his Reserve drills and told him that he had 
to choose between being a trooper and being a reservist. 

 

The applicant stated that he ultimately took a day  off so that he could attend drill and 
explain his circumstances to his CO, but when he arrived, he was told that the CO was unavail-
able.  Therefore, he later called his CO, explained his circumstances, and asked to be released 
into the Individual Ready Reserve (IRR; inactive status).  However, his CO “was adamant that I 
remain in the active reserves and that I needed to convince my civilian supervisors that I had an 
obligation to the USCGR.”  Then, “[f]eeling that [the CO] did not fully understand my position 
and that he had shown prejudice towards my civilian occupation, I decided to memorialize my 
situation in a letter dated March 25, 1991,” to the District Commander.  In the letter, he again 
asked to be released into the IRR.  However, in July 1991, he was told that he would be given a 
general discharge.  He alleged that he did not object simply because he was naïve and needed to 
“move on with my life.”  He alleged that because he was discharged “under honorable condi-
tions” he did not think that the discharge would adversely affect his ability to reenlist at a later 
date. 

 
The applicant believes that his inability to reenlist is unfair because, before he joined the 
State Police, he had an excellent record as a reservist, and because both his sergeant in the State 
Police and his CO “were unwilling to work with me to resolve my situation.” 

 
The  applicant  alleged  that  he  has  had  an  excellent  record  as  a  trooper  and  is  now  a 
sergeant first class in charge of communications.  He stated that as a supervisor of other young 
troopers, he has ensured that they do not encounter the same problems he had so that they can 
attend their drill weekends.  In addition, he alleged that he has earned a Master’s Degree from 
Seton Hall University. 

 
In support of his allegations, the applicant submitted a letter of reference from a sergeant 
in a municipal police department who is also an officer in the Air National Guard.  He stated that 
he has known the applicant for ten years and that the applicant’s “level of integrity and character 
are  well  known  to  all  of  those  who  know  him.    He  is  respected  greatly  by  his  peers.”    He 
described the applicant as dependable, dedicated, and loyal.  
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

On January 17, 1985, while a student at Union County College, the applicant enlisted in 
the Coast Guard Reserve for eight years under the RK program.  The Statement of Understand-
ing he signed that day states the following in pertinent part: 

 
1.  …I  understand  that  I  will  be  required  to  participate  satisfactorily  (see  paragraph  5)  in  the 
Selected Reserve until six years from the anniversary of my enlistment.  For the last two years 
of my obligation, I will not be required to participate in the Selected Reserve. … 

 

 
2. 

I  will  be  ordered  to  IADT  (Phase  1  –  recruit  training)  within  180  days  from  the  date  of 
enlistment.  I will be released in time to meet the convening dates of my education program.  I 
may be required to complete recruit training during the summer. 

 
3.  Upon enlistment, I will be assigned to a Coast Guard Reserve Unit (CGRU) and required to 
participate  satisfactorily  (see  paragraph  5)  in  this  unit  for  at  least  the  first  six  years  of  my 
eight-year obligation.  If I fail to participate satisfactorily I may be discharged, possibly under 
other  than  honorable  conditions,  or  ordered  involuntarily  to  active  duty  for  a  period  of  24 
months… [Paragraph 4. omitted.] 

 

5.  Satisfactory participation is defined as:  

a. 

successful completion of two phases of IADT.  Phase I  will be recruit  training (at 
least  eight  weeks).    Phase  II  will  be  Class A  school  (at  least  10  weeks).    If  I  am 
unable or unqualified to attend Class A school, Phase II will be on-the-job training 
(at least 12 weeks). … 

b.  Attending at least two single drills each month at my reserve unit in the first period 
between  IADT  phases;  at  least  four  single  drills  between  subsequent  inter-phase 
periods, if any. 

c.  Upon completion of Phase II, attendance at, and satisfactory performance in at least 
48 scheduled drills and at least 12 days ADT each anniversary year until six years 
from  the  anniversary  of  my  enlistment.    In  lieu  of  this  requirement,  satisfactory 
service of not more than 30 days active duty each year … 

d.  Satisfactory performance, adaptability, military behavior, and appearance for the full 

term of my enlistment. 

 
From  June  10  through  August  2,  1985,  the  applicant  attended  recruit  training.    Upon 
completing training, he advanced from seaman recruit (SR; E-1) to seaman apprentice (SA; E-2).  
He  completed  2  drills  in  August,  4  drills  in  September,  and  2  drills  in  October,  1985.    His 
anniversary year ending January 16, 1986, was satisfactory since he earned more than 50 points 
toward retirement. 

 
From  November  24,  1985,  through  January  31,  1986,  the  applicant  attended  BM  “A” 
School to become a boatswain’s mate.  Upon graduation, he advanced to seaman and received 
his rating designator (SNBM; E-3).  On August 1, 1986, upon completing six months in grade as 
an E-3, the applicant advanced to BM3/E-4.  A Retirement Points Statement (CG-4175) shows 
that he completed 4 drills each month in his anniversary year ending January 16, 1987, except for 
November 1986, during which he completed 12 days of ADT from November 17 through 28. 
 
 
completed 36 of the 48 scheduled drills and no ADT.   
 
 
“Mandatory Attendance at Unit Drills”: 
 

The applicant’s CG-4175 for his anniversary year ending January 16, 1988, shows that he 

On  August  29,  1989,  the  applicant’s  CO  sent  him  the  following  letter  concerning 

1.    To  date  you  have  missed  a  total  of  10  drills  during  this  anniversary  year  and  have  had  2 
unsatisfactory previous years. 
 
2.  As an “RK” you are obligated to perform not less than ninety percent (90%) of all scheduled 
drills.    Your  performance  thus  falls  far  below  that  which  is  required  by  Section  4-A-1  of 
COMDTINST M1001.27. 
 
3.    Section  12-B-8  of  the  Reserve  Administration  and  Training  Manual  [RATMAN]  COMDT-
INST  M1001.27  deals  with  processing  procedures  for  unsatisfactory  performers  requiring  that 
“Whenever  a  reservist  is  failing  to  participate  satisfactorily  through  failure  to  attend  prescribed 
drills, answer official correspondence, or participate satisfactorily in the training mission, he/she 
should be immediately counseled so as to induce satisfactory participation.”  Failing this, steps to 
commence a Discharge for Unsuitability shall be taken. 
 
4.  You are advised that this command will be drilling on Saturday and Sunday, 23/24 September 
1989 at Station Sandy Hook.  You are directed to report during the scheduled drill to the Captain 

 
 
 

1.    In  accordance  with  [Article  12-B-11  of  the  RATMAN],  it  is  requested  that  proceedings  for 
general discharge be initiated for [the applicant]. 
 
2.  Member has failed to comply with repeated orders to appear for counseling and review of his 
status  (Enclosure  no.  1).    He  has  displayed  his  unwillingness  to  satisfactorily  participate  in  the 
Reserve Program by not attending designated drill weekends and not fulfilling required ADT. 
 
3.  This unit requests that the general discharge proceedings be started. … 

On April 29, 1990, the XO of the applicant’s unit sent him the following letter: 

1.  I have reviewed your record and have found that for last year you were absent 30 of the 48 
scheduled  drills.    So  far,  this  year  you  have  missed  all  16  drills.    Records  show  that  your  last 
participation in the Coast Guard Reserve was August 1988.  Note that through your absence, you 
are in violation of your contract and are subject to general discharge. 
 
 2.    You  are  directed  to  report  to  me  personally  on  Saturday,  May  19,  1990,  for  counseling 
regarding your past and future Reserve participation. 

for counseling.  You are directed to report at this command not later than 0745 on the 23rd and 
departing 1630 on the 24th of September. 
 
5.  Bring with you any and all documentation to substantiate all missed drills. 

 
 
On December 3, 1989, the applicant’s supervisor notified him that he had missed 16 drills 
since  his  last  anniversary  date,  January  17,  1989,  and  8  drills  since  September  30,  1989.    He 
advised him to make up the drills.  The  applicant’s CG-4175 for the anniversary  year ending 
January 16, 1989, shows that he completed 36 drills and performed 13 days of ADT from August 
7 through 19, 1988. 
 

 
The applicant’s CG-4175 for the anniversary year ending January 16, 1990, shows that he 
completed 18 drills and performed no ADT.  On February 25, 1990, the applicant’s CO sent the 
following letter to the District Commander: 
 

 
 
On  his  performance  evaluation  for  the  period  ending  June  30,  1990,  the  applicant 
received primarily marks of 2 (on a scale of 1 to 7, with 7 being best) in the various performance 
categories,  such  as  conduct,  communicating,  teamwork,  knowledge,  workmanship,  stamina, 
professionalism, judgment, responsibility, and loyalty. 
 
 
 

On November 12, 1990, the applicant’s CO wrote him the following letter: 

1.  I have reviewed your record and have found that this year you were absent for 24 drills.  You 
missed 44 drills last year.  Records show that your last participation in the Coast Guard Reserve 
was August 1988.  Note that through your absences you are in violation of your contract and are 
subject to a general discharge. 
 
2.  You are directed to report to me personally on Saturday, December 15, 1990, for counseling 
regarding your past and future Reserve participation. 

 
 
proceedings to award the applicant a general discharge.  The CO wrote that the applicant 

On January 1, 1991, the CO sent the District Commander a letter asking that he initiate 

has  not  participated  in  an  IDT  for  his  annual  year  1990  (40  drills  missed).    He  also  had  an 
unsatisfactory year in 1989 (36 unexcused absences).  He has displayed complete unwillingness to 
participate in the Reserve Program by not fulfilling the requirements of his contract.  He has failed 
to comply with repeated orders to appear for counseling and review of his status as evidenced by 
enclosures (1) and (2). 

 
 
On March 1, 1991, the District Commander sent the applicant a letter stating that he was 
initiating the applicant’s general discharge due to misconduct for shirking.  The District Com-
mander informed the applicant that he had a right to consult legal counsel and to submit a written 
statement.    In  response,  the  applicant  acknowledged  receipt  of  the  notification,  acknowledged 
having  been  provided  the  opportunity  to  consult  with  a  lawyer  about  the  proposed  discharge, 
objected to his discharge, and submitted the following statement, in pertinent part, dated March 
25, 1991: 
 

 

 

Sir,  this  is  to  inform  you  that  I  object  to  a  general  discharge  from  the  U.S.  Coast  Guard  and 
respectfully request to be placed in the Inactive Ready Reserve. 
 
I have a lot of respect and admiration for the Coast Guard family and would very much like to be 
part of that family.  But due to my present circumstances with my civilian occupation as a New 
Jersey  State  Trooper  working  a  rotating  schedule,  along  with  attending  college  part  time,  I  am 
unable to participate in my drills. 
 
In  the  letters  you  have  received  from  my  unit,  it  indicates  that  I  have  failed  to  contact  them 
reference  my  poor  attendance.    Commander,  on  April  30,  1990,  at  approximately  8:45  p.m.,  I 
contacted  [the  CO]  at  his  residence  and  explained  my  situation,  but  my  point  is  that  I  was  in 
contact with the unit. 
 
Commander, I understand that I could have handled my attendance differently, but I cannot undo 
the damage. 
 
In closing I would like to state that I am very proud of being a member of the United States Coast 
Guard.    Until  my  enlistment  with  the  New  Jersey  State  Police,  I  was  very  aggressive  and 
productive  in  my  unit.    I  was  a  certified  crew  member,  boarding  officer,  and  also  completed 
several Coast Guard schools with high rankings. 
 
I do not wish to be separated from the Coast Guard.  I only wish to be placed in the Inactive Ready 
Reserve so that some day I may return to active reserve status. 
 
If this request is unable to be granted, I ask only that I receive an honorable discharge from the 
United States Coast Guard so that I will not encounter prejudice in my civilian life. 

 
  
On June 7, 1991, the District Commander forwarded the CO’s letter initiating the appli-
cant’s discharge to the Commandant with a recommendation that it be approved.  The District 
Commander wrote that the applicant had been counseled by an attorney and that it 
 

is  the  opinion  of  this  command  that  Reserve  Unit  Sandy  Hook  has  done  everything  feasible  to 
ensure  that  [the  applicant]  was  aware  of  his  responsibility  to  attend  scheduled  drills.    Further 
retention of [him] is not warranted and he should be separated from the Coast Guard Reserve with 
a General Discharge by reason of Misconduct (Shirking). 

 
On July 9, 1991, the Commandant ordered that the applicant receive a general discharge 
for misconduct (shirking) with reenlistment code RE-4.  The applicant’s command executed the 
order the same day.  The applicant’s final CG-4175 shows that he neither drilled nor performed 
ADT during his final, partial anniversary year. 
 

VIEWS OF THE COAST GUARD 

 
On January 3, 2007, the Judge Advocate General (JAG) submitted an advisory opinion in 
 
which he recommended that the Board deny the requested relief.  The JAG stated that the Board 
should not waive the statute of limitations because the applicant failed to provide “good cause 
for  his  failure  to  timely  file.”    The  JAG  further  stated  that  the  applicant  repeatedly  failed  to 
perform his reserve duty requirements and received due process prior to his discharge.  The JAG 
further  argued  that  the  applicant  “failed  to  present  any  evidence  that  he  was  improperly  dis-
charged or that the Coast Guard improperly characterized the nature of his service.” 
 

The  JAG  also  adopted  the  facts  and  analysis  provided  in  a  memorandum  on  the  case 
prepared by the Coast Guard Personnel Command (CGPC).  CGPC stated that the applicant’s 
record “demonstrates a clear pattern of poor Reserve participation” although he was “afforded 
numerous opportunities and counseling regarding his participation requirements.”  CGPC stated 
that although the applicant “contends that he was prohibited from participating in Reserve drills 
due  to  his  civilian  employment  and  college  work  …  [t]here  is  no  record  of  the  Applicant 
attempting  to  rectify  his  participation  other  than  the  Applicant’s  statement  that  he  called  his 
commanding officer at home on April 30, 1990.”  CGPC stated that although the applicant did 
request transfer to the IRR, such a transfer “was not authorized for ‘RK’ program personnel with 
less than 2 years [of] active duty” under Article 4-E-1 of the RATMAN.  CGPC stated that the 
applicant’s  contention  that  his  command  did  not  treat  him  fairly  is  not  corroborated  by  the 
correspondence  in  his  record,  which  instead  substantiates  his  command’s  efforts  to  help  him 
meet his Reserve obligations.  CGPC argued that the applicant’s general discharge was issued 
“in accordance with Coast Guard policy and consistent with the Applicant’s poor participation 
record and failure to uphold the terms of his contract.”  
  

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 thirty days.  No response was received.  
 

APPLICABLE REGULATIONS 

 
 
Articles 4-A-1 and 4-B-1 of the RATMAN provided that members in the RK program 
with less than two years of active duty were required to attend a minimum of 90% of their 48 
scheduled drills each anniversary year and at least 12 days of ADT.  Article 4-C-2 stated that 
failure  to  meet  the  participation  requirements  in  Article  4-A-1  or  Article  4-B-1  constituted 
“unsatisfactory participation.” 
 
 
Article 4-C-3 stated that COs should monitor reservists’ participation and counsel them to 
correct deficiencies.  Article 4-E-1 stated that, when a member in the RK program with less than 

two years of total active duty failed to attend drills in response to counseling about unsatisfactory 
participation, the CO should initiate the member’s discharge for misconduct.  If the member had 
at least two years of active duty, the CO could initiate the member’s discharge for misconduct or 
initiate his transfer to the IRR. 
 

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. 

1. 
  
2. 

 
3. 

Under 10 U.S.C. § 1552(b), an application to the Board must be filed within three 
years  after  the  applicant  discovers  the  alleged  error  in  his  record.   The  applicant  received  his 
general  discharge  and  RE-4  code  in  1991.   Although  he  stated  that  he  discovered  the  alleged 
error  (his  inability  to  reenlist)  in  2006,  the  Board  notes  that  the  applicant  was  afforded  legal 
counsel  concerning  the  effect  of  his  general  discharge  and  finds  that  he  knew  or  should  have 
known that he would not be allowed to reenlist prior to or upon his discharge in 1991.1  There-
fore, his application was untimely. 

4. 

Pursuant to 10 U.S.C. § 1552(b), however, 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 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.”2  
 
 
Other than alleging that he did not previously know that he could not reenlist, the 
applicant did not explain why he waited more than fifteen 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  presumptively 
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  his  civilian  employment  as  a  trooper,  beginning  in  1987,3  interfered  with  his  drill  atten-
dance.  A letter in his record dated March 25, 1991, shows that he attributed his failure to attend 
drills  to  his  rotating  work  schedule  as  a  trooper  and  to  his  part-time  college  coursework.   A 
summary of his total participation, taken from his CG-4175s and other documents, appears as 
follows: 

5. 

                                                 
1 “An application for correction of a record must be filed within three years after the applicant discovered 
or reasonably should have discovered the alleged error or injustice.”  33 C.F.R. § 52.22. 
2 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992). 
3 The applicant alleged that he graduated from the police academy and was assigned to a highway station 
as a trooper within a year of a 1986 recruiting announcement about becoming a trooper. 

 

 
4 
4 
4 
2 
 

 
4 
4 
4 
4 
 

 
4 
2 
 
4 
 

4 
4 
 
 

4 
4 
4 
4 
 
 

 
4 
5 
4 
 
 

6. 

7. 

2 
4 
4 

 
 

ADT 

 
4 
4 
4 
2 
 

JAN  FEB  MAR  APR  MAY 

JUN 

JUL  AUG 

Sch. 
4 
4 
4 
 

boot camp 
4 
4 
 
5 
4 
4 
2 
 
 
 

SEP  OCT  NOV  DEC 
BM A School 
4 
ADT 
 
 
 
 

 
Anniversary Year 
1/17/85 – 1/16/86 
1/17/86 – 1/16/87 
1/17/87 – 1/16/88 
1/17/88 – 1/16/89 
1/17/89 – 1/16/90 
1/17/90 – 1/16/91* 
* Although there is no CG-4175 for this anniversary  year, on January 1, 1991, the applicant’s CO notified the District Com-
mander that the applicant had not attended a single drill that year. 
 
 
The applicant’s explanation for his failure to participate satisfactorily is similar to 
that he offered to the District Commander in 1991, but at that time he added the fact that he had 
allowed his part-time college coursework—a voluntary if laudable endeavor—to interfere with 
his drilling.  As the applicant’s CO forwarded his March 25, 1991, letter to the District Com-
mander, the applicant’s explanations for not fulfilling his contractual obligation were presumably 
duly assessed but rejected.  The Board further notes that, although the applicant indicated that he 
began his job as a trooper in 1987, his participation did not markedly wane until 1989. 
 
 
 Upon enlistment, the applicant was notified of the participation requirements and 
warned that failure to meet them could result in an other than honorable (OTH) discharge.  He 
signed  a  contract  to  serve  for  eight  years,  accepted  the  Coast  Guard’s  training,  and  thereafter 
participated fairly regularly for only three years before his attendance record became abysmal.  
He was repeatedly offered counseling about his participation and received due process, including 
legal counsel, prior to his discharge.  Although he asked to be transferred to the IRR, that was not 
an option available under Article 4-E-1 of the RATMAN.   
 
The Board’s cursory review of the merits of the case indicates that the applicant 
 
has  submitted  insufficient  evidence  to  prove  that  his  1991  general  discharge  for  misconduct 
(shirking) and consequent RE-4 reenlistment code are erroneous or unjust.4 
 
 
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 cannot prevail upon the merits.  Therefore, his request should be denied. 

8. 

9. 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
4 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 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, for 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

correction of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
 Philip B. Busch 

 

 
 Francis H. Esposito 

 

 

 
 Steven J. Pecinovsky