DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-035 
XXXXXXXXXXXXX 
XXXXXXXXXXXXX  
   

 

 
 

FINAL DECISION 

 
 
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 November 24, 2006, upon 
receipt of the applicant's completed application for correction of his military record. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  July  31,  2007,  is  approved  and  signed  by  the  three  duly 

APPLICANT'S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  his  record  by  upgrading  his  1984  discharge 
under  other  than  honorable  conditions  (OTH)  to  at  least  a  general  discharge  under  honorable 
conditions.    He  also  requested  that  the  Board  “clear  handwritten  dates”  on  his  DD  Form  214 
(DD-214) documenting his service from December 31, 1981, to December 7, 1984.   He further 
requested that the Board “increase the accuracy in block 28” that contains the narrative reason 
for  his  separation.      The  original  DD-214  stated  the  reason  for  the  applicant’s  discharge  as 
“conviction  by  civil  authorities,”  which  was  lined  out,  and  the  word  “misconduct”  was 
handwritten in the block.  The original DD-214 also had some minor inaccuracies regarding the 
applicant’s net active service.  In block 12.c., his net active service was first shown as 2 years, 5 
months, and 1 day but was corrected manually to show 2 years, 4 months, and 28 days.  Block 29 
was  corrected  by  hand  to  show  that  the  applicant  had  3  days  of  lost  time  resulting  from  his 
arrests rather than 4 days, as originally shown, and to show that the period from June 1, 1984, to 
December  7,  1984,  was  also  lost  time  because  the  applicant  was  incarcerated  in  the  state 
penitentiary during this period.   
 
 
The  applicant  alleged  that  the  numerous  cross-outs  and  added  handwritten  dates  are 
confusing and that he needs to have his discharge upgraded in order to receive medical benefits.  
He stated that if his discharge is upgraded he can apply to the Department of Veterans’ Affairs 
for benefits that would assist him in adjusting to society.  He stated that he is currently in a state 
hospital and that after nine years of treatment he has been given permission to be released back 
into the community under supervision.   

 
 
The applicant stated that he did not discover the alleged error until November 1, 2006, 
because he was unable to obtain his records while incarcerated.  He further stated that he was not 
aware of the requirements for obtaining benefits until recently informed of them by his mental 
health clinicians   
 

SUMMARY OF RECORD 

The  applicant  served  honorably  in  the  active  duty  Coast  Guard  from  January  3,  1978, 

 

until December 30, 1981.   

 
On December 31, 1981, the applicant reenlisted in the Coast Guard for six years. 

On  October  26,  1983,  the  applicant  was  arrested  by  civilian  authorities  for  child 

 
 
molestation and he was released from arrest on October 27, 2003. 
 
 
 

On November 2, 1983, the applicant was arrested again by civilian authorities. 

On December 1, 1983, the applicant was awarded non-judicial punishment for conduct 
that  brought  discredit  upon  the  Coast  Guard  by  obtaining  loans  on  various  occasions  through 
false pretenses, a violation of Article 134 of the Uniform Code of Military Justice (UCMJ). 
 
 
On June 1, 1984, the applicant was sentenced to 3 years in a California State Penitentiary 
for oral copulation with children under 11 years of age in violation of section 288(a)(c) of the 
California Penal Code.   The applicant was remanded to the custody of the sheriff that day for 
delivery to the penitentiary. 
 
 
On  July  10,  1984,  the  applicant  was  advised  by  registered  letter  that  his  commanding 
officer  (CO)  was  considering  discharging  the  applicant  from  the  Coast  Guard  by  reason  of 
misconduct due to civil conviction of a felony and due to violation of Article 134 of the UCMJ.  
The applicant was further advised that he could receive a discharge under other than honorable 
conditions.   The CO advised the applicant that LT A, a lawyer, would contact the applicant to 
assist him in making decisions with respect to the following rights: 
 

a. to have your case considered by an administrative discharge board of not less 
than three officers. 
 
b.  to  request  appointment  of  a  lawyer  within  the  meaning  of  UCMJ  Article 
27(b)(1)  to  represent  you  and,  in  your  absence,  to  present  your  case  before  an 
administrative discharge board.   
 
c.  to submit statements in your behalf, and;  
 
d.    to  conditionally  or  unconditionally  waive  any  or  all  of  the  foregoing  rights 
(only after consulting with an attorney) either in writing or by failing to reply to 
this letter of notification within 30 days of receipt.   

 
 
 
On August 28, 1984, the applicant acknowledged notification of the proposed discharge 
and unconditionally waived his right to an administrative discharge board hearing.  He did not 
submit a statement in his own behalf.  He also acknowledged that he could receive an other than 
honorable discharge that could deprive him of many or all of his rights as a veteran under both 
federal and state legislation.   
 
 
than honorable conditions by reason of misconduct. 
 
 
than honorable conditions.  
 

On December 7, 1984, the applicant was discharged from the Coast Guard under other 

On November 9, 1984, the Commandant approved the applicant’s discharge under other 

VIEWS OF THE COAST GUARD 

 
 
On  April  4,  2007,  the  Board  received  an  advisory  opinion  from  the  Judge  Advocate 
General (JAG), stating that the Coast Guard had issued the applicant  a  new DD  Form 214 to 
replace the one containing pen and ink corrections.  The JAG argued that the applicant was not 
entitled to any further relief 
 

In  recommending  denial  of  relief,  the  JAG  argued  that  the  application  was  untimely 
because it was filed more than twenty years after the applicant’s discharge from the Coast Guard.  
He stated that applications for correction of military records must be filed within three years of 
the date the alleged error or injustice was, or should have been, discovered.  33 CFR § 52.22.  He 
said  that  the  Board  may  waive  the  statute  of  limitations  and  consider  the  case  if  an  applicant 
presents sufficient evidence that it is in the interest of justice to do so.  The JAG stated that the 
length of the delay, the reasons for the delay, and the likelihood of the applicant's success on the 
merits  of  his  claim  are  factors  to  be  considered  in  deciding  whether  to  waive  the  statute  of 
limitations.    The  JAG  stated  that  the  applicant  was  aware  or  should  have  been  aware  of  his 
discharge when he received it in 1984.  He noted that the applicant had been provided with an 
attorney prior to waiving his right to an administrative discharge board. 

 
The  JAG  stated  that  the  only  explanation  offered  by  the  applicant  for  not  filing  his 
application sooner was his alleged inability to obtain his records because he was incarcerated and 
that he was unaware until recently that an upgraded discharge would afford him benefits.  The 
JAG stated that the applicant provided no other evidence that his delay should be excused. 

 
The  JAG  stated  that  absent  strong  evidence  to  the  contrary,  government  officials  are 
presumed to have carried out their duties correctly, lawfully, and in good faith.  Arens v. United 
States, 969 F.2d 1034, 1037 (1992).  Moreover, he stated that the applicant bears the burden of 
proving error under 33 C.F.R. § 52.24, and that he has failed to meet his burden in this case.   

 
 Attached  to  the  advisory  opinion  as  Enclosure  (1)  were  comments  from  Commander, 

 
Coast Guard Personnel Command (CGPC), who offered the following: 
 

The DD-214 contained in the applicant’s record  . . . includes unauthorized pen 
and ink changes.[1]  CGPC administratively reissued the applicant a DD-214. 
 
The applicant contends that his time lost is excessive however he does not provide 
any justification for his statement.  The applicant had three periods of absence that 
constitute  lost  time.    Deductible  time  was  recorded  for  his  civil  arrests  and 
confinement  for  the  following  periods:    October  26-27,  1983  (inclusive); 
November 2, 1983; and the period from his civilian conviction and confinement, 
June 1, 1984 through December 6, 1984 (day prior to his discharge from the Coast 
Guard).    The  applicant’s  net  service  in  item  12.c.  of  his  reissued  DD-214  .  .  . 
properly reflects this time lost.  The time lost is supported by his record . . .   
 
The applicant requests consideration for an upgrade to his discharge from other 
than  honorable  to  general  [under  honorable  conditions],  however  he  does  not 
provide any justification regarding an error or injustice to support such a claim.  
The applicant was processed according to applicable regulations . . . and waived 
his  right  to  an  administrative  separation  board  .  .  .    A  complete  review  of  the 
applicant’s record supports the character of service rendered to the applicant upon 
discharge.    The  applicant  was  convicted  of  a  felony  by  the  State  of  California.   
Specifically, “Oral Copulation with children under the age of 11 years, Count 3, a 
felony” and sentenced to 3 years of confinement . . .  Under the UCMJ, Article 
134  (indecent  acts  or  liberties  with  a  child)  the  maximum  punishment  for  such 
offense  is  dishonorable  discharge,  forfeiture  of  all  pay  and  allowances,  and 
confinement  for  7  years.”    In  addition,  the  applicant  received  30  days  of 
correctional custody and reduction to pay  grade  E-3 at NJP for obtaining loans 
under  false  pretenses  and  representing  himself  as  an  E5/E-6  on  7  separate 
occasions  during  his  enlistment    .  .  .  Clearly  the  nature  of  the  applicant’s  civil 
offense and conviction warrants a character of service no better than that currently 
assigned . . . Any upgrade to the applicant’s discharge is not warranted.   

 

APPLICANT'S REPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On April 17, 2007, a copy of the Coast Guard’s views was sent to the applicant for any 
response that he desired to make.  The BCMR did not receive a reply from the applicant to the 
views of the Coast Guard. 
 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
submissions and military record, submission of the Coast Guard, and applicable law: 
 

                                                 
1   Paragraph 8.k. of COMDTINST M1900.4D states that corrections to the DD-214 after issuance will be made on 
a DD-215.  It does not authorize handwritten changes to be made on the DD-214.  This instruction further states that 
any alterations on the DD-214 will render it void.   

States Code.   
 
 
2. The application was not timely.  The applicant had been discharged for approximately 
twenty  years before he filed  his application with the Board.   To be timely, an application for 
correction of  a military  record must be submitted within three  years  after the alleged error or 
injustice was discovered or should have been discovered.  See 33 CFR 52.22.   
 

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."  See also Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995).  

1.    The  Board  has  jurisdiction  of  this  case  pursuant  to  section  1552  of title  10  United 

 
4.  Although the applicant’s signature is on the original DD Form 214, he claims that he 
did not discover the alleged error until November 2006.   Moreover, the applicant acknowledged 
in a letter waiving his right to an administrative discharge board that he could receive an other 
than honorable discharge and that, if awarded, such a discharge, it would most likely result in the 
loss of any veterans benefits.  Therefore, the Board finds that the applicant was aware or should 
have been aware of his other than honorable discharge and the negative effect that it would have 
on any potential veterans’ benefits at the time of his discharge. 
 
 
 5.  A cursory examination of the merits of the  case  indicates that the applicant is not 
likely to prevail on his request for an upgrade of his discharge.  The applicant did not allege any 
specific error or injustice on the part of the Coast Guard, nor did he present any proof that the 
Coast  Guard  had  committed  an  error  or  injustice  by  discharging  him  with  an  other  than 
honorable discharge.  Article 12.B.2. of the Personnel Manual permits the Coast Guard to assign 
an other than honorable discharge where misconduct forms the basis for the separation.  Article 
12.B.18.b.  of  the  Personnel  Manual  states  that  the  Commandant  may  discharge  a  member  for 
misconduct who has been convicted by civil authorities of an offense for which the maximum 
penalty under the UCMJ is death or confinement in excess of one year or that involves moral 
turpitude.  As the advisory opinion stated, seven years was the maximum confinement under the 
UCMJ  for  the  offense  in  which  the  applicant  was  convicted  in  civilian  court.    Therefore,  the 
applicant’s  civilian  conviction  and  sentence  met  the  requirement  for  an  other  than  honorable 
discharge by reason of misconduct.     Moreover, the applicant received due process.  He was 
notified  of  the  discharge,  was  assigned  a  lawyer  for  consultation,  and  waived  his  right  to  an 
administrative discharge board hearing, as well as his right to submit a statement.  In light of the 
foregoing,  it  is  not  likely  that  the  applicant  will  prevail  on  his  request  for  an  upgrade  of  his 
discharge.   
 
 
6.  The Coast Guard has issued a new DD-214 to replace the original one that contained 
pen and ink corrections.  Block 12.c. of the new DD-214 shows the applicant’s net active service 
to  be  2  years,  4  months,  and  28  days.    In  block  28.,  the  narrative  reason  for  separation  is 
misconduct  as  directed  by  the  Commandant’s  November  9,  1984,  message  approving  the 
applicant’s other than honorable discharge.  Block 29 shows the three days that the applicant was 

under civilian arrests as lost time, as well as the period from June 1, 1984, until December 6, 
1984, during which he was incarcerated prior to his discharge.  The applicant has not shown that 
any of these entries are incorrect.   
 
 
7.  Accordingly,  due  to  the  length  of  the  delay,  the  lack  of  compelling  reasons  for  not 
filing  his  application  sooner,  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.    The 
application should be denied because it is untimely and because it lacks merit. 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The  application  of  former  SN  XXXXXXXXXXXXXX,  USCG,  for  correction  of  his 

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Bruce D. Burkley 

 

 

 
J. Carter Robertson 

 

 

 
Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

   
 

 
 
military record is denied.