DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-131 
 
xxxxxxxxxxxxxxxxx.1 
xxxxxxxxxxxxxxxxx   

 

 
 

FINAL DECISION 

 
 
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 application on May 4, 
2007,  upon  receipt  of  the  applicant’s  completed  application  and  military  records  and 
subsequently prepared the final decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  January  24,  2008,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  upgrading  his  bad 
conduct discharge (BCD) to an honorable discharge.  The applicant enlisted in the Coast Guard 
on November 10, 1950, and was discharged from the Service on June 6, 1952.   
 

The applicant stated that after completing boot camp, he was sent to Yerba Buena Island, 
CA, where he experienced a great deal of prejudice.   He stated that he was assigned to cleaning 
toilets and latrines on a  buoy tender,  a job he hated, while others were being promoted.  The 
applicant also stated that he suffered from severe seasickness.   

 
The  applicant  stated  that  he  subsequently  went  to  fireman  school,  after  which  he  was 
assigned to a forty foot patrol boat.  He stated that someone told him that he was going to be 
assigned to a large cutter that deployed overseas.  He stated that he could not handle the thought 
of  being  seasick  every  day,  so  he  went  AWOL  (absence  without  leave  (also  referred  to  as 
unauthorized absence)).  He stated that he had two periods of AWOL that terminated with turning 
himself in to authorities each time.   

 
The  applicant  was  convicted  and  sentenced  for  each  period  of  authorized  absence  at 
separate courts-martial.   For the second AWOL, he was sentenced at special court-martial to six 
                                                 
1   The applicant filed his application under as assumed name and did not explain why he does not use 
the name in his official military record.  He did however provide the Board with his service number. 

months confinement and a BCD.  He argued that the BCD was a harsh punishment for what he 
did and it has prevented him from getting government jobs and from receiving other benefits.  
He  stated  that  his  then-misconduct  was  mitigated  by  the  fact  that  he  suffered  from  dyslexia, 
hearing loss, illnesses, immaturity, and prejudice and ignorance.   

 
The applicant stated that he discovered the alleged error in 1998, and that his failure to 
file  a  timely  application  should  be  excused  because  he  is  currently  retired  and  in  need  of  his 
benefits.  In addition, he stated that he has been a good citizen since his discharge.   
 

SUMMARY OF THE RECORD AND SUBMISSIONS 

The applicant enlisted in the Coast Guard on November 10, 1950.   The record indicates 

 
 
that the applicant completed recruit training on February 20, 1951.   
 

The applicant began a period of unauthorized absence on August 8, 1951 and surrendered 

himself to military authorities on September 10, 1951. 
 
 
On  October  15,  1951,  at  the  request  of  the  Coast  Guard,  the  applicant  underwent  a 
psychiatric  examination  to  determine  whether  he  was  mentally  competent  to  stand  trial  by 
special court-martial.  The applicant indicated during his psychiatric interview that he had gone 
to bed on August 8, 1951 and awakened five days later unkempt in Los Angeles with a complete 
loss  of  memory.    The  psychiatric  report  notes  that  the  applicant  remained  on  unauthorized 
absence  for  another  25  days,  at  which  point,  he  turned  himself  in  to  base  authorities.    The 
applicant  also  reported  that  he  suffered  from  headaches  one  or  two  times  per  week.    The 
psychiatric report continued: 
 

[The  applicant]  remains  extremely  resentful  of  his  superiors  and  taking  orders, 
feels he has a bad name on the base and they tend to make it more difficult for 
him than it needs to be.  While it is not possible to state unequivocally that the 
[applicant] did not undergo amnesia as stated, in terms of lack of corroborative 
evidence of a psychoneurotic nature, lack of anxiety about the episode, his general 
air of indifference and hostility, etc. it is felt that the period of amnesia as stated is 
only a very remote possibility.  I am still of the opinion that the headaches, though 
now reported [to be] much less frequent than previously are related to his hostility 
and may possibly have been [an] over react[ion] in terms of his implied wish to be 
out  of  the  service.  I  feel  he  is  competent  to  stand  trial  by  Coast  Guard  court-
martial.  

 
 
On  November  29,  1951,  the  applicant  was  convicted  at  special  court-martial  for 
unauthorized absence from August 8, 1951 to September 10, 1951.  He was sentenced to forfeit 
$50 per month for three months.  The Convening Authority, persuaded by the applicant’s claim 
that he suffered a five day period of amnesia, reduced the forfeiture to $48 per month for three 
months  and  approved  only  so  much  of  the  finding  of  guilty  for  unauthorized  absence  from 
August 13, 1951, to September 10, 1951.     
 

 
The applicant underwent a second period of unauthorized absence.  On May 5, 1952, he 
was convicted by a special court-martial in accordance with his pleas of unauthorized absence 
from December 3, 1951, to February 6, 1952.2  He was sentenced to a bad conduct discharge 
(BCD) and confinement at hard labor for three months.    
 
 
On  April  14,  1952,  the  applicant  signed  a  statement  waiving  his  right  to  request 
restoration  to  duty  and  requested  execution  of  the  BCD.  His  signature  indicated  that  he 
understood that the discharge would not be under honorable conditions; that he could forfeit all 
rights as a veteran; that he could not reenlist without special permission; that the discharge would 
not  be  automatically  reviewed  or  changed;  and  that  he  could  expect  to  encounter  substantial 
prejudice  in  civilian  life.  In  his  waiver  statement,  he  said,  “I  can’t  adjust  myself  to  military 
service.  I want out because of that and will do anything to get out.”  The applicant’s signature 
was witness by a Marine Corps officer.   
 
On May 21, 1952, after consulting with a legal assistance officer, the applicant waived 
 
his right to petition the United States Court of Military Appeals for review of his special-court-
martial conviction.    
 
 
On  June  3,  1952,  the  Coast  Guard  Clemency  Board  concurred  with  the  applicant’s 
request for discharge.  On June 4, 1952, the Commandant recommended that the applicant be 
discharged.  Subsequently, the Secretary of the Treasury approved the applicant’s discharge.   
 
 
“other than honorable” character of service.   
 

On June 6, 1952, according to the DD form 214, the applicant was discharged with an 

VIEWS OF THE COAST GUARD 

On October 5, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted an 

 
 
advisory opinion recommending that the Board deny relief to the applicant.    
 
 
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 fifty-five year delay in filing an application with 
the Board within three years of his discharge from the Coast Guard.  The JAG stated that the 
nature and character of the applicant’s discharge was known to him at the time of his discharge. 
The  JAG  further  argued  that  the  applicant  admitted  that  he  was  aware  of  the  alleged  error  in 
1998 but still did not file his application until nine years later.    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.   
  

                                                 
2   Although the applicant stated that he surrendered himself from this period of unauthorized absence, 
the military record shows that he was apprehended by Coast Guard authorities at Oakland, CA. 

The JAG stated that the applicant has failed to present sufficient evidence to support his 
claim that the Coast Guard committed an error by discharging him with a BCD awarded to him 
by  a  special  court-martial  sentence  for  a  66  day  unauthorized  absence.    Therefore,  the  JAG 
asserted that the Board should dismiss this case with prejudice.   

 
Alternatively, the JAG argued that the Board should deny the applicant’s claim on the 
doctrine of laches.  Under 10 U.S.C. § 1552, the Secretary is not compelled to correct a record, 
but may exercise considerable discretion in determining whether such a correction is “necessary” 
to make the applicant whole.  The JAG stated that in the instant case, the applicant’s delay in 
bringing  his  claim  is  both  unreasonable  and  unexcused  and  therefore  may  be  denied  due  to 
laches.  See Cornetta v. United States, 851 F.2d 1372, 1377-38 (1988).  The JAG further stated: 

 
Underlying  the  laches  bar  is  the  fundamental  principal  that  equity  aids  the 
vigilant; the doctrine prohibits applicants from delaying their BCMR applications 
absent  circumstances  excusing  the  delay,  while  the  evidence  regarding  their 
contentions becomes lost, stale, or inaccessible, or while the costs of investigating 
or correcting the matter accumulate.  In the present case, the Coast Guard’s ability 
to contact key witnesses has been severely hampered by the mere fact that they no 
longer  serve  in  the  Coast  Guard  or  are  deceased.    Therefore,  considering  the 
substantial  delay  between  the  error  and  date  of  application  in  this  case  and  the 
applicant  has  the  burden  of  proof,  the  Board  should  dismiss  [the  applicant’s] 
claim with prejudice.   
 
The  JAG  stated  that  if  the  Board  excuses  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 in the court-martial proceedings or in the discharge. The JAG noted that the 
applicant’s statement referenced his unpleasant duties but the nature of the applicant’s assigned 
duties were commensurate with his pay grade and there is nothing in the record to support the 
applicant’s claim that he was improperly treated.   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.     
 
 
The JAG also stated that the Board should not upgrade the applicant’s discharge based 
solely on his post-service conduct.  The JAG noted that the applicant has failed to substantiate 
any error or injustice and argued that the Board should not interpret the applicant’s request as a 
matter of clemency because he has provided no compelling circumstances that would require a 
clemency  review.    The  JAG  stated  that  the  power  of  clemency,  like  the  power  of  pardon,  is 
intended  to  address  extraordinary  circumstances  that  normal  legislative  and  judicial  processes 
cannot effectively address.   
 
Attached  to  the  advisory  opinion  as  Enclosure  (1)  were  comments  from  commander, 
 
Coast Guard Personnel Command (CGPC), who stated that under the current Manual for Courts-
Martial (2005 ed.), the maximum punishment for an unauthorized absence totaling more than 30 

days  is  a  dishonorable  discharge,  forfeiture  of  all  pay  and  allowances,  and  confinement  for  1 
year.  For an absence of more than 30 days terminated by apprehension, the punishment is the 
same except the maximum period of confinement is 18 months.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On November 6, 2007, the BCMR received the applicant's reply to the views of the Coast 
Guard.  He  stated  that  he  was  remorseful  for  what  happened  but  he  argued  that  the  BCD  was 
inequitable.  He  stated  that  the  country  was  overtly  racist  in  the  1950s  and  he  was  treated 
differently because of his surname.  He also asked the Board to consider the fact that he suffered 
from severe seasickness and suggested that based on that he could obtain a medical discharge. 
 
 
The applicant also stated that if he had had some legal representation and counseling that 
explained  the  ramifications  of  his  decision  not  to  challenge  his  discharge  and  the  effect  the 
discharge would have on his life, he never would have signed it.  
 
 
The applicant stated that after leaving the military, he had difficulty finding jobs due to 
the BCD, but eventually became a carpenter and obtained a building contractor’s license.  He 
stated that he married and raised five children in a good Christian environment and sent all five 
to college.   
 
 
The applicant stated that he was not aware that there was a limit on trying to reverse his 
discharge.    He  stated  that  he  was  76  years  old  and  would  like  to  rectify  this  terrible  mistake 
before passing on.  Also, correcting it would help with his medical problems.  
 
The applicant submitted a statement from his wife.  She stated that the applicant is being 
 
judged too harshly for what he did.  She further stated that the applicant was young and naïve 
and did not have any one to advise him of the consequences of his actions.  She also indicated 
that the applicant has worked hard, supported his family, and educated his children.  She stated 
that the applicant is a good man who made a mistake.    
 

FINDINGS AND CONCLUSIONS 

1. 

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 section 1552 of title 

10 of the United States Code.   
 
 
2.  To be timely, an application for correction must be filed within three years of the date 
the  alleged  error  or  injustice  was,  or  should  have  been,  discovered.    See  10  U.S.C.  §  1552; 
33 CFR  §  52.22.    This  application  was  submitted  to  the  Board  over  fifty  years  after  the 
applicant’s discharge.  Although the applicant stated that he did not discover the alleged error 
until 1998, he did not deny that he was aware that his court-martial sentence in 1952 included a 
BCD.  He was aware of the negative affect of the BCD because he wrote that he had problems 

obtaining a job because of it. Therefore, he should have discovered the alleged error within three 
years of his discharge from the Coast Guard.  
 
 
 Even if the Board accepts the applicant’s statement that he did not discover the alleged 
error until 1998, he still waited more than approximately nine years before bringing the matter 
before  the  Board.    The  applicant  has  not  presented  any  evidence  that  he  sought  any  help  or 
assistance  in  upgrading  his  BCD  prior  to  filing  his  application  with  the  Board  in  2007.  The 
applicant’s reason for not filing his application within three years of his discharge or within three 
years  of  the  alleged  discovery  of  the  error  in  1998  is  not  persuasive  to  the  Board.    The 
application is untimely.    
 

3.  Although  the  application  is  untimely,  pursuant  to  10  U.S.C.  §  1552  the  Board  may 
waive the three-year statute of limitations if it is in the interest of justice to do so.  To determine 
whether  it  is  in  the  interest  of  justice  to  waive  the  statute  of  limitations,  the  Board  should 
consider the reason for the applicant’s delay and conduct a cursory review of the merits of the 
case.  Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992).   

                                                 
3   It should be noted that the Deputy General Counsel granted relief in BCMR No. 322-091 despite the 
fact  that  the  Coast  Guard  rendered  an  advisory  opinion  recommending  denial  of  relief  because  the 
applicant  failed  to  comply  with  the  statute  of  limitations  and/or  because  the  Discharge  Review  Board 
had already refused to upgrade that applicant’s BCD.   

 
 
4.  In similar cases where applicants were discharged with BCD’s in the 1940s, the Board 
waived the statute of limitations in part because it determined that the BCMR did not exist at the 
time  of  discharge  for  certain  applicants  and  they  might  not  have  known  about  the  Board, 
although  at the time of  filing their applications  the BCMRs had existed for many  years.   See 
BCMR Nos. 132-96, 34-93, 348-89, 152-81, and 24-81.  Also, the Board waived the statute of 
limitations because it determined  that during the 1940s and 1950s  applicants were discharged 
with  BCDs  for  absence  offenses  and/or  other  minor  infractions  that  under  today’s  standards 
would most probably lead to a general discharge.  A cursory examination of the merits in this 
case indicates that the facts are sufficiently similar to other cases in which the Board waived the 
statute of limitations in the interest of justice and upgraded BCDs that were imposed by courts-
martial for absence offenses, some of which occurred during World War II.  
  
 
5.    With respect to the merits in the instance case, the Board looks to the then-Deputy 
General Counsel’s decision in BCMR No. 322-91 for guidance.  In that case,  the then-Deputy 
General  Counsel  upgraded  that  applicant’s  BCD  to  a  general  discharge  even  though  he  had 
committed two periods of unauthorized absence (23 days and 41 days of unauthorized absence 
and the theft of a mate’s uniform, all occurring during wartime).  In granting relief,3 the Deputy 
General Counsel did not find that the Coast Guard committed any error in issuing that applicant a 
BCD, but stated: 
 

I noted that repeated absenteeism (AWOl and AOL) of the types involved here 
are, under contemporary Coast Guard standards, grounds for a general discharge 
under honorable conditions for the convenience of the government, rather than a 
[BCD].  See BCMR 89-78; also CG Personnel Manual Article 12-B-2 and 12-B-
12 . . . 

 
In a 1981 case, the Board upgraded a 1945 bad conduct discharge of an applicant 
after two unauthorized absences and a civil conviction for petty theft.  In doing so, 
the Board  considered the applicant’s  youth, his  limited (tenth  grade)  education, 
the nature of his offenses (AWOL’s) and the length of time that he had suffered 
under  the  onus  of  his  [BCD],  finding  his  punishment  was  too  severe  under 
contemporary  standards.    It  also  noted  that  the  discharge  was  by  reason  of  a 
summary court-martial.  This case serves as a clear precedent for a grant of relief 
in the application here.  I find that the upgrade should be granted in this case. 
 
Moreover, 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; and BCMR 240-85.   

 
The then-Deputy General Counsel’s decision in BCMR No. 322-091 is instructive of the 
 
factors  that  the  Board  should  consider  in  deciding  whether  to  upgrade  an  applicant’s  BCD, 
especially  for  absences  that  occurred  during  World  War  II.      Factors  to  be  considered  when 
determining  whether  to  upgrade  an  applicant’s  BCD  are  the  types  of  offenses  committed,  the 
length  of  time  the  applicant  has  suffered  under  the  onus  of  his  BCD,  the  applicant’s  age  at 
enlistment, his level of education at the time, and whether members would receive a BCD for the 
absence offenses under contemporary standards.   
 
 
6.  Further guidance is provided in BCMR No. 89-78.  The then-General Counsel in that 
case did not limit relief from a BCD to just those who committed absence offenses during World 
War  II  (1939  to  1945).    The  Board  notes  that  in  BCMR  No.  89-78,  the  General  Counsel 
approved upgrading an applicant’s BCD that was issued as late as 1962.  The Board’s decision in 
that case, which was approved by the General Counsel, stated the following: 
 

[I]t  should  be  noted  that  under  contemporary  standards  of  military  justice 
petitioner could not be sentenced to a bad conduct discharge by a special court-
martial unless he were provided with legal counsel and a judge presided over the 
proceedings (Article 19, Uniform Code of Military Justice; 10 U.S.C. § 819).  The 
Board  is  of  the  opinion  that  the  current  procedures  represent  a  substantial 
enhancement  of 
in  such  proceedings.  
Furthermore, in view of petitioner’s entire record, this Board is of the opinion that 
had petitioner been provided with legal counsel to advise him and advocate his 
position,  there  is  a  reasonable  doubt  as  to  whether  he  would  have  received  the 
same discharge.   

the  rights  afforded  a  serviceman 

 
 
7.  Like the Deputy General Counsel in BCMR No. 322-091 and the General Counsel in 
BCMR No. 89-78, the Board finds that the Coast Guard did not commit an error by issuing a 
BCD to the applicant.  In addition, the applicant provided no corroboration to support his claim 
that  he  suffered  from  seasickness,  dyslexia,  or  ethnic  prejudice  while  in  the  Coast  Guard  that 
would tend to be a basis for mitigation of the BCD.  There is evidence that during one period of 
unauthorized  absence  the  applicant  stated  that  he  suffered  from  a  period  of  amnesia,  but  the 
psychiatrist found this to be unlikely and further found the applicant fit to stand trial.      

 
 
8.    Notwithstanding  the  above  discussion,  the  Board  will  not  direct  an  upgrade  of  the 
applicant’s BCD at this time because he has failed to explain to the Board why he uses an alias 
rather than the name in his official military record or how he has been harmed by the BCD over 
the  past  50  years.    Moreover,  he  has  not  presented  the  Board  with  any  evidence  from  any 
individuals  other  than  his  spouse  that  he  has  lived  an  exemplary  life  since  his  discharge.  
Therefore,  if  the  applicant  submits  proof  that  he  has  no  criminal  record  under  his  official  or 
assumed names, an explanation and/or evidence of the suffering he has encountered as a result of 
the BCD, and character references that he has lived an exemplary life since his discharge to the 
Board within 180 days from the date of this decision, the Board will grant further consideration 
in this case. 
 
 
9.  As  stated  above  the  Board  agrees  with  the  Coast  Guard  that  there  was  no  error 
committed when the Coast Guard discharged the applicant with a BCD.    However, the Board 
must also consider whether the applicant has suffered an injustice under the precedent discussed 
above.   
 
 
10.    Accordingly,  the  applicant’s  request  is  denied,  except  that  the  Board  will  grant 
further consideration if the applicant submits the documentary evidence identified in Finding 8. 
above within 180 days  from the date of the issuance of this final decision.   
 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 
 

 

ORDER 

 

 

 

 

 

 
 

 
 

 

 

 

 

 
 

 
 

 
 

 
 

 
Francis H. Esposito 

The  application  of  former  xxxxxxxxxxxxxxxx  USCG,  for  correction  of  his  military 
record is denied, except that the Board will grant further reconsideration if the applicant submits 
the documentary evidence identified in Finding 8. of the Findings and Conclusions.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
Randall J. Kaplan 

 

 
 
Darren S. Wall