DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2006-188
XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX
FINAL DECISION
AUTHOR: Ulmer, D.
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 September 29,
2006, upon receipt of the applicant’s completed 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
The applicant asked the Board to correct his military record by upgrading his 1967
general discharge under honorable conditions to an honorable discharge. He also requested that
evidence of a special court-martial conviction for assault be removed from his record.
APPLICANT’S ALLEGATIONS
The applicant alleged that his general discharge is unjust because it resulted from racial
discrimination and because he was sexually assaulted while on active duty and his commanding
officer (CO) failed to do anything about it.
The applicant further alleged that his court-martial conviction for assault should be
removed from his record because it too resulted from racial discrimination and was based on lies
from members of the Coast Guard who were prejudiced against him. He further alleged that
these members demonstrated their dislike for him by putting feces on his bunk. The applicant
stated that because of the unfair treatment he received due to his race and the alleged sexual
assault, he has been diagnosed with and suffers from post traumatic stress disorder (PTSD). He
also stated that the untimeliness of his application should be excused because of the PTSD. In
support of his allegations, he submitted a January 13, 2006, psychiatric report from the
Department of Veterans Affairs (DVA). The psychiatric report stated that the applicant told the
examiner that he had been sexually assaulted in 1966 and that the command failed to take any
action after the applicant reported it.
The DVA psychiatric report also states that subsequent to the sexual assault, the applicant
was hospitalized for ten days in a metropolitan (Baltimore) hospital and that since that time he
has required psychosocial support for major depression in addition to medications. Under
“History of Present Illness” the psychiatrist wrote:
The veteran worked for the most part as a ticket agent for a bus company
(Trailways). He stopped working in 1988 because of “mental stress”. The
veteran expressed gratitude to Dr. [K], who in 1988 established the diagnosis of
post traumatic stress disorder secondary to sexual assault. This veteran has been
afflicted all along with signs and symptoms of PTSD, mostly characterized by
intrusive recollections of events on a daily basis, nightmares more than three
times per week in frequency, difficulty concentrating and completing tasks,
persistent symptoms of increased arousal, irritability, as well as post-military
stressors in the area of avoidance of the stimuli associated with trauma and
numbing general responsiveness. This veteran continues to avoid situations or
people which arouse recollection, and he cannot watch movies that depict sexual
assaults or sexual content type of material.
With respect to the applicant’s mental status examination, the DVA psychiatrist wrote the
following:
This is an alert male looking in accordance to his chronological age. His behavior
remains in general appropriate to the structure and the manner of this interview
and situation. This veteran was casually dressed, appropriately groomed,
maintaining good personal hygiene. His posture was normal but movements were
slow. The veteran was using a wheelchair because of the severity of pain across
the lower extremities . . . On several occasions, the veteran was tearful. No
hallucinations or delusions were present. No obsessive or ritualistic behavior was
detected. Mood was reported by the veteran as anxious and depressed, assessed
by this interviewer as moderately anxious and depressed. He denied suicidal or
homicidal ideations, intentions or plans. Emotional expression or affect was
generally constricted throughout the interview but congruent to thought content
and mood. Thought processes were logical, coherent and goal oriented.
Cognitive functions - the veteran was fully oriented to person, place, time and
purpose. There are no deficiencies of cognition or memory but concentration and
attention are moderately impaired. Insight and judgment are well preserved.
The psychiatrist diagnosed the applicant as suffering from PTSD and major depression
linked to PTSD and current physical difficulties. The psychiatrist stated that after reviewing the
applicant’s file, the electronic medical records, and medical literature, “it is reasonable to
conclude that the veteran’s allegations of manifesting PTSD linked to the service are more likely
than not.”
SUMMARY OF THE COAST GUARD RECORD
The applicant enlisted in the Coast Guard on June 7, 1965.
On October 20, 1966, the applicant signed an administrative remarks (page 7) entry
acknowledging that the Coast Guard was considering discharging him by reason of unsuitability
due to his lack of aptitude, his inability to manage his financial affairs, his inability to refrain
from dishonorable relations with women, and his possible character and behavioral disorders.
The applicant agreed to be examined by a psychiatrist.
On October 25, 1966, the applicant was evaluated by the chief of psychiatric services at a
United States Public Health Service (USPHS) hospital. The USPHS psychiatrist’s impression
was that of an angry young man who had some undesirable character traits but who was not
mentally disturbed. The USPHS psychiatrist further stated “the sum total of the [applicant’s]
personality assessments does not entitle the examiner to call [the applicant] mentally disturbed so
that we could give him a medical diagnosis . . . In fact he does not seem to be distressed enough
to warrant any kind of medication.” The report noted that the applicant was not sleeping well
due to nightmares of being placed in front of a firing squad and indicated that occasional
medication for sleeping could be prescribed.
the applicant was also evaluated by a civilian neuropsychiatrist.
On October 28, 1966, the applicant was punished with twenty days of correctional
custody at a captain’s mast for two violations of Article 92 of the Uniform Code of Military
Justice (UCMJ) by failing to maintain a contact number and for unauthorized use of a
government vehicle. He was also punished for speeding, a violation of Article 134 of the UCMJ.
From December 28, 1966 to January 11, 1967, the applicant was hospitalized with low
back pain that he claimed was incurred while lifting weights. The applicant was evaluated by an
orthopedist and diagnosed with mild low back pain and possible malingering. While
hospitalized,
The
neuropsychiatric report commented that the applicant stated that “[he] can’t work all of his life”
and that he needed a job that required no bending or kneeling. The report further noted the
applicant’s comments that he was filled with hate, that he believed that he had been unfairly
treated by his command, and that he still suffered with back pain. The neuropsychiatrist’s agreed
with the previous psychiatric report and offered his impression that the applicant was in a
paranoid state at that time, but that he was not sure that it could be called a psychosis. He also
stated that the applicant’s back pains were psychophysiological. Subsequent to the two
consultations, the applicant was discharged from the hospital fit for duty.
On January 10, 1967, the USPHS psychiatrist prepared a report on the applicant at the
request of his defense counsel who was assigned to represent the applicant against charges of
assault and communicating a threat. The USPHS psychiatrist wrote the following in pertinent
part:
[The applicant] has been seen by two different psychiatrists over the past several
months, myself and Dr. [L], an outside non-military psychiatrist. I have seen this
man on two different occasions and the most recent one was January 9, 1967, I
have felt all along that while this man has had a great deal of difficulty in living
and following the rules of social order, that he is primarily not suffering from a
mental disease. In other words, he is responsible for his actions and does not have
significant psychological difficulties to disable him in any way. Also I felt that he
could stand trial for any disciplinary action that was needed. Dr. [L], on the other
hand, felt that this man suffered from a paranoid state or what might be called a
paranoid personality[1] according to the American Psychiatric Association
Manual. Because of our differences of opinion, we did have a conference in an
effort to resolve our differences of opinion. Because I have known the patient
over a longer period of time and am directly responsible for military personnel
here as a Public Health Service officer, I feel the report leaving from the hospital
to the Coast Guard should be as follows:
That the [applicant], while suffering from some traits of a personality disorder
does not show significant psychopathology to warrant a psychiatric diagnosis or
disease. Also, that he is responsible for his actions and that he should be allowed
to stand trial for any disciplinary action pending against him.
On January 12, 1967, the applicant was readmitted to the hospital for treatment and
evaluation of maxillary facial infected inclusion cyst. The applicant was discharged on February
8, 1967 in a fit for duty status.
On February 20, 1967, the applicant was convicted under Article 128 of the UCMJ at a
special court-martial of two specifications of assault against two different service members by
striking at them with a cardboard cutting device. He was sentenced to three months of
confinement at hard labor and reduced to pay grade E-1.2 During his confinement, the applicant
received a psychiatric evaluation on March 23, 1967, that determined that he did not have a
mental disease and that cleared him psychiatrically for any appropriate administrative action.
On April 25, 1967, the commanding officer informed the applicant that the command
intended to recommend to the Commandant that the applicant be administratively discharged
from the Coast Guard under Article 12-B-10 of the Personnel Manual due to inaptitude apathy,
defective attitude, inability to expend effort constructively, and financial irresponsibility.
On April 25, 1967, the applicant signed a statement in which he acknowledged that he
had been informed of the proposed discharge, that he had been counseled regarding the matter,
that he did not wish to submit a statement on his behalf, and that he was in complete accord with
the proposed action.
1 Paranoid personality disorder is not a mental disease, defect, or disability. See Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition, p. 685 and Coast Guard Medical Manual.
2 During the applicant’s confinement at Fort Meade, he wrote to his CO and senators on numerous
occasions seeking a discharge from the Coast Guard. In none of his correspondence did the applicant
state that he had been the victim of a sexual assault.
On April 25, 1967, the CO recommended that the Commandant discharge the applicant
for unsuitability, due to inaptitude, apathy, defective attitude, inability to expend effort
constructively, and financial irresponsibility. The CO provided the following narrative with
respect to the applicant:
[The applicant] was assigned to this station after boot camp, reporting 24 August
1965. He performed well, though slow, until August 1966. His slowness was
attributed to a slight degree of immaturity, his superiors believing this would pass
with time. Since then he has been a continual liability to the command due to his
inaptitude, in combination with apathy. He can be trusted to perform only the
most menial and simple tasks and then must be afforded constant supervision.
Minor incidents involving infractions of regulations were overlooked in an effort
to straighten him out and no official records were kept.
He has been a constant problem because of his relationships with other people,
both civilian and military. He is always involved with women, married and
single, to the extent that his life has been threatened on occasion. He is presently
serving a sentence of confinement arising from an altercation over an enlisted
man’s wife. He has large financial obligations which he is unable to discharge
and it is apparent that these obligations will continue to increase. His chances for
advancement are nil . . . Counseling has proved to be of no value as [the
applicant] seems to be incapable of managing his life in an orderly manner and
seems little interested in his assigned duties or his relationship with the service.
The CO noted that the applicant had an average mark of 2.8 in proficiency and 3.08 in
conduct, but that he expected that the applicant would receive marks of 1.0 in both proficiency
and conduct once his special court-martial conviction had become final.
On April 28, 1967, the Commander, Fifth Coast Guard District recommended to the
Commandant that the applicant be discharged due to misconduct by reason of frequent
involvement of a discreditable nature with military authorities and by reason of an established
pattern of dishonorable failure to pay just debts, rather than by reason of unsuitability. The
Commander recommended that the applicant be discharged with a general discharge and that he
surrender his uniform upon separation.
On May 5, 1967, the Commandant directed the applicant to be discharged from the Coast
Guard with a general discharge due to unsuitability under Article 12-B-10 of the Personnel
Manual.
On May 19, 1967, the applicant signed an administrative remarks entry stating that he
agreed with the findings that he was physically qualified for release from active duty. The
applicant was discharged from the Coast Guard on May 19, 1967.
VIEWS OF THE COAST GUARD
On February 20, 2007, the Board received an advisory opinion from the Office of the
Judge Advocate General (JAG). He recommended that the applicant's request for relief be
denied because it was untimely and for lack of proof of error or injustice.
The JAG argued that the applicant has failed to show by a preponderance of the evidence
why it is in the interest of justice to excuse his thirty-six year delay in filing an application with
the Board within three years of his discharge from the Coast Guard. The JAG stated that the
applicant’s explanation that he did not file his application sooner because he suffers from PTSD
is not good cause for failing to file his application within the time required. He further argued
that based upon a cursory review of the merits it is not likely that the applicant will prevail on his
claim. See Allen v. Card, 799 F. Supp. 158, 166 (D.D.C. 1992) (In determining whether it is in
the interest of justice to waive the statute of limitations, the Board should “consider the reason
for the delay and the plaintiff’s potential for success on the merits, based on a cursory review.”)
In this regard the JAG argued that a review of the record reveals that the applicant was properly
separated from the Coast Guard.
The JAG stated that the applicant has failed to present sufficient evidence to support his
claim that he suffered from PTSD while in the Coast Guard. The JAG further stated that the
2006 DVA evaluation report diagnosing the applicant’s PTSD is not signed and does not contain
any other information that allows the Coast Guard to determine its origin. The JAG also stated
that there is no evidence in the record that the applicant was the victim of a sexual assault while
in the Coast Guard. Nor is there any evidence in the applicant’s record that permits the Coast
Guard to conclude that the applicant’s court-martial conviction was based on racial
discrimination.
The JAG stated that should the Board excuse the applicant’s untimely filing of his
application, the Board should still deny relief. In this regard, the JAG stated that absent strong
evidence to the contrary, it is presumed that Coast Guard officials carried out their duties
lawfully, correctly, and in good faith. Arens v. United States, 969 F. 2d 1034, 1037 (D.C. Cir.
1990). According to the JAG, the applicant offers no evidence that the Coast Guard committed
any error or injustice. Further, the record shows that the applicant was properly discharged from
the Coast Guard after his conviction at court-martial and other incidents that resulted in
disciplinary action.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On February 23, 2007, the BCMR received the applicant's reply to the views of the Coast
Guard. He disagreed with the advisory opinion. The applicant stated that things were going
pretty well for him in the Coast Guard until he began a relationship with a white woman. Then,
according to the applicant, he was called the N word, human waste was placed in his bunk, and
dead fish was put under his pillow. He stated that he reported each incident to his command but
nothing was done.
The applicant wrote that in 1965 on Thanksgiving evening when his girlfriend brought
him back to the base, a pistol was put to his head and he was sexually assaulted by four men; he
provided names of three of the four. The applicant stated that he reported the assault to the duty
officer, but rather than assisting him, the duty officer called the applicant the N word and told
him to get away from him. The applicant stated that he also reported the assault to the CO but he
did not do anything about it.
The applicant states that he was subsequently hospitalized due to trauma and placed on
medication. He stated that he told his doctors about the assault and that it was written in his
medical record. He stated when he attempted to obtain his hospital records several years after
his discharge he learned that the records had disappeared from Johns Hopkins Hospital where
they had been stored.
The applicant stated that after he was released from the hospital he returned to his unit
where he continued to suffer abuse. The applicant stated that on return from an assignment to
Thomas Point lighthouse he was pushed overboard and discovered two dead bodies. He stated
that upon discovery of the dead bodies he began crying for help and apparently he was assisted
by some men who were fishing nearby. The applicant stated that he and the other crewmembers
went into shock. He stated that he was hospitalized for approximately six weeks at a Public
Health Service hospital.3
With respect to the court-martial charges, the applicant stated that he overheard the two
individuals that he was convicted of assaulting planning another sexual assault against him. As a
result, he stated that he put a box cutter in his hand to protect himself. He denied that that he
assaulted them.
The applicant stated that he was tried and sentenced to 90 days confinement at the Fort
Meade stockade, where he was sexually assaulted again. The applicant stated that he has been
living with the traumatic events for forty-two years and that his life has been severely affected.
In this regard, he stated that he relives the traumatic events every day; that he is required to take
medication for the remainder of his life; that he is under severe stress; and that he is not
employable.
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:
of the United States Code.
1. The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10
3 In response to a 1999 DVA request for information about this assignment, the Coast Guard wrote
”examination of personnel jacket does not mention any specific incident involving dead bodies in the
Chesapeake Bay or that [the applicant] was involved in any kind of “special” duty or mission.”
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. The applicant stated that he
discovered the alleged error on May 19, 1967, the date of his discharge from the Coast Guard.
Therefore, the application was submitted approximately thirty-three years beyond the statute of
limitations. The applicant argued that the untimeliness should be excused because he suffers
from PTSD and is under treatment by the DVA. However, a fairly recent diagnosis of PTSD
does not explain why the applicant could not have filed an application sooner. Moreover, there
is no medical evidence in the record that the applicant’s PTSD or any other mental illness
interfered with his ability to comply with the 10 U.S.C. § 1552 or the Board rules at 33 C.F.R.,
part 52.
3. Although the applicant’s explanation for not filing his applicant sooner is not
persuasive, the Board must still perform at least a cursory review of the merits to determine
whether it is the interest of justice to waive the statute of limitations. 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. Based on a review of the merits as discussed below, the applicant is not likely to
prevail on his claim, and therefore, the Board is not obligated to waive the statute of limitations
in this case. Although, the applicant argued that his general discharge should be upgraded to
honorable because it resulted from racial discrimination, he has submitted insufficient evidence
to prove that he was treated unjustly and/or that racial discrimination was the reason for his
discharge, rather than his own disciplinary and performance record. The applicant’s non-
judicial punishment, special court-martial conviction for an assault on two other service
members, and the CO’s statement that he had been an administrative burden to the command
formed a sufficient basis on which to award the applicant a general discharge.
5. The applicant also argued that his discharge should be upgraded because he was the
victim of a sexual assault, which he allegedly reported but was ignored by the command. There
is no evidence in the record to support the applicant’s claim that he was ever sexually assaulted
while in the Coast Guard. Therefore, the applicant has failed to submit sufficient evidence to
prove that he was sexually assaulted while on active duty.
6. The applicant has presented no evidence, except for his own statement, that his
referral to special court-martial for assault was racially motivated or that it was based upon lies.
In this regard, he stated that he obtained the box cutters that he used in the assault for which he
was convicted at court-martial for his own protection because he had overheard the victims of his
assault allegedly planning a sexual assault on him (the individuals allegedly planning this sexual
assault were different from those who allegedly sexually assaulted the applicant the first time).
However there is no evidence in the record that the applicant was in fear of bodily harm and
needed cardboard box cutters for self protection. Accordingly, insufficient evidence has been
presented to prove any error or injustice with respect to his special court-martial conviction.
7. The applicant currently suffers from PTSD that the applicant attributes to the alleged
sexual assault and the alleged discovery of dead bodies while on assignment near a lighthouse.
However there is no evidence in the Coast Guard record that the applicant suffered from PTSD
while in the Coast Guard. The psychiatric examinations performed while the applicant was on
active duty are much more reliable than the 2006 DVA mental examination performed more than
thirty years after the applicant’s discharge from the Coast Guard. The Coast Guard psychiatric
evaluations revealed that the applicant did not suffer from any mental disease or defect, although
he may have had some undesirable personality traits, even the one neuropsychiatrist who stated
at the time of examination that the applicant was then in a paranoid state, commented that he
could not call it a psychosis. In addition, the March 1967 psychiatric evaluation that the
applicant received while in confinement found the applicant to be free of a mental disease and
could be processed for an administrative separation. The Board notes that on March 19, 1967,
the applicant agreed that he was medically fit for separation from the Coast Guard.
8. The applicant’s suggestion that his PTSD resulted from an alleged sexual assault that
occurred while in the Coast Guard and the alleged discovery of dead bodies while out on an
assignment to a lighthouse are not supported by the record. As noted above, there is no evidence
of a sexual assault in the record, nor is there any evidence that the applicant was on an
assignment that led to the discovery of dead bodies. The evidence of record does not support the
applicant’s suggestion that he was hospitalized as a result of the alleged sexual assault or that he
was hospitalized after discovering dead bodies near a light house. According to the military
record, the applicant was hospitalized once for complaints of low back pain incurred while lifting
weights and once for a facial infected inclusion cyst. Therefore, the applicant has submitted
insufficient evidence to prove that he suffered from PTSD while on active duty or at the time of
his discharge.
9. The applicant received all due process to which he was entitled under the Coast Guard
Personnel Manual. He was notified of the discharge and provided an opportunity to make a
statement, which he declined.
10. Accordingly, due to the length of the delay and the applicant’s lack of probable
success on the merits of his claim, the Board finds that the application should be denied because
it is untimely and because it lacks merit.
[ORDER AND SIGNATURES ON FOLLOWING PAGE]
The application of former XXXXXXXXXXXXXXX, USCG, for correction of his
ORDER
Patrick B. Kernan
Donald A. Pedersen
Kenneth Walton
military record is denied.
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