DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-216 
 
XXXXXXXXXXXX 
XXXXXXXXXXXX   

 

 
 

APPLICANT'S ALLEGATIONS 

 

 
The applicant alleged that he has suffered an injustice with respect to the character of his 
discharge.  He stated that the character of his discharge is based on having failed one urinalysis 
test for drugs while on active duty.  He argued that he was promised an honorable discharge if he 
accepted  an  administrative  discharge  in  lieu  of  a  re-sentencing  hearing  on  a  court-martial 
conviction for illegal use of cocaine.  In support of this contention, he submitted a July 29, 1991, 
unsigned  letter  purportedly  from  himself  to  the  Commandant  stating  that  he  would  accept  an 
administrative discharge in lieu of a rehearing on his sentence, if the Commander, U.S. Coast 
Guard Group, recommended that he receive an honorable discharge.  (There is no evidence in the 
record that the Commander, U.S. Coast Guard Group ever saw this letter or acted upon it.)  

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 case on November 
September  26,  2007,  upon  receipt  of  the  applicant’s  completed  application  and  subsequently 
prepared the final decision for the Board as required by 33 CFR § 52.61(c).   
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  24,  2008,  is  approved  and  signed  by  the  three  duly 

APPLICANT'S REQUEST 

 
 
other than honorable conditions to an honorable discharge.   
 

The  applicant  asked  the  Board  to  correct  his  record  by  upgrading  his  discharge  under 

The  applicant  enlisted  in  the  Coast  Guard  on  April  20,  1987,  and  was  discharged 
approximately four and one-half years later under other than honorable conditions by reason of 
the good of the Service in lieu of re-sentencing by court-martial.  He was assigned an RE-4 (not 
eligible to reenlist) reenlistment code and a KFS (for the good of the service) separation code.  
 

 
 
The applicant also argued that he was not given the option of receiving rehabilitation or 
counseling, and he noted that he was a good performer prior to the drug incident.  He asserted 
that the Court in Giles v. Secretary of the Army, Civil Action No. 77-0904 (D.C.C. 1979) held 
that a member of the Army could be discharged for a negative urinalysis test for drugs, but the 
characterization of the member’s service could not be based on the test results.     
 

SUMMARY OF RECORD  

 

 
Documents in the applicant’s military record show that on December 13, 1989, he 
was  convicted  at  a  special  court-martial  of  a  single  specification  of  wrongful  use  of 
cocaine.  His sentence included a bad conduct discharge. (The military record does not 
currently contain the record of trial or court memorandum.)   
 
On  December  15,  1989,  over  the  applicant’s  objection,  his  command  requested 
 
the applicant’s placement on appellate leave1 after imposition of the BCD by a special 
court-martial.   
 

 On December 19, 1989, the Commandant approved the applicant’s placement on 

appellate leave pending review of his court-martial conviction.   

 
In 1991, the Court of Military Review affirmed the applicant’s conviction for use 
of cocaine, but set aside the sentence adjudged by the court-martial and a rehearing was 
authorized.  

 
On September 30, 1991, the applicant returned from appellate leave to his unit for 
the  purpose  of  appearing  at  special  court-martial  for  a  rehearing  on  his  sentence  as 
ordered by the Court of Military Review.    

 
On  October  1,  1991,  after  consultation  with  a  Coast  Guard  law  specialist,  the 
applicant requested a discharge under other than honorable conditions for the good of the 
Service  pursuant  to  Article  12-B-21  of  the  Personnel  Manual.    In  his  signed  letter 
requesting  the  administrative  discharge,  which  was  also  signed  by  his  counsel,  the 
applicant stated the following: 

 
I understand that if Commandant approves this request, I waive any right that I 
may have to a hearing before an administrative discharge board.  Inherent in this 
waiver is the right to have my case heard by an administrative discharge board of 
not less than three officers, my right to personally appear before such a board, and 
my right to be represented by counsel before that board.   
 
I understand that I may submit a sworn or unsworn statement in my behalf.  I do 
not desire to submit a statement.   

                                                 
1      Appellate  leave  is  a  leave  of  absence  from  the  Coast  Guard  without  pay  or  allowances  for  those 
members awaiting legal review of a court-martial sentence that includes a punitive discharge.    

 
If Commandant approves this request, I agree to waive all rights and entitlements 
that I may have to back pay and allowances under 10 U.S.C. 707 and Article 12-
D-2a of [the Personnel Manual]. 
 
I understand that if this request is approved I will receive a discharge under other 
than honorable conditions.  I understand that such a discharge may deprive me of 
some or all veterans’ benefits based upon my current period of active service and 
that I may expect to encounter substantial prejudice in civilian life in situations 
wherein the type of service rendered in any branch of the Armed Forces or the 
character of discharge received therefrom may have a bearing.   
 
I understand that once this request is submitted it may only be withdrawn with the 
consent of the Commandant.   
 

  * 

 

* 
 

 

* 

This  request  is  voluntarily  submitted  free  from  any  duress  or  promises  of  any 
kind.  I have asked my counsel, who has fully explained to me the implications of 
my request, to witness my signature.   

 

On October 17, 1991, the Commandant approved the applicant’s discharge under other 

than honorable conditions for the good of the Service. 

 
On November 15, 1991, the applicant was discharged from the Coast Guard under other 

than honorable conditions. 
 

 

 

 

 

 
 
VIEWS OF THE COAST GUARD 

 

 

 

 

 

 

 
 
On February 6, 2008, the Board received an advisory opinion from the Judge Advocate 
General (JAG), recommending that the Board deny the applicant's request for relief.  The JAG 
adopted the facts and analysis provided by CGPC, which was attached as enclosure (1) to the 
advisory opinion.  CGPC noted that the application was untimely and offered the following: 
 

The  applicant’s  record  reveals  that  the  applicant  was  tried  by  a  special  court-
martial  for  illegal  use  of  cocaine.    The  applicant  was  placed  on  involuntary 
appellate  leave  and  was  subsequently  recalled  for  a  re-hearing  on  sentencing.  
Prior to being recalled, the applicant allegedly submitted [a letter of acceptance 
for an administrative in lieu of a rehearing on his sentence if granted an honorable 
discharge].  This correspondence is not part of the applicant’s official record and 
there is no record of endorsement or action on this request.  The applicant alleges 
this request is the legitimate request for discharge over the request submitted on 
October 1, 1991 . . .  There is nothing in the record to support this assertion and 
policy . . . [Article 12.B.21 of the Personnel Manual] does not support that such a 
request would be approved.   
 

The applicant  voluntarily  requested discharge  for the good of the service under 
other  than  honorable  conditions  in lieu  of  a  re-hearing  on  sentencing  .  .  .    The 
applicant  was  afforded  all  due  process,  consulted  with  legal  counsel  and 
acknowledged the nature and impact of his request.  The applicant’s request was 
approved . . . and he was discharged on November 15, 1991 . . .   
 
There is no basis for the applicant’s assertion that he is entitled to an honorable 
discharge.  Current policy expressly prohibits granting a discharge of any better 
status  than  a  general  discharge  for  involvement  with  drugs.    Additionally,  the 
applicant’s assertion that the provision of Giles v. Secretary of the Army applies in 
his  case  is  invalid.    [Chapter  4-1,  Army  Regulation  15-185]  specifies  the 
application with regards to the Army for discharges processed prior to November 
27,  1979  and  related  to  urinalysis  procedures  that  predate  the  applicant’s  case.  
The  applicant  states  that  he  was  not  provided  an  option  for  rehabilitation  or 
counseling for his drug abuse.  [H]owever there is no provision that requires such 
as a determination of discharge.   
 

APPLICANT'S REPONSE TO THE VIEWS OF THE COAST GUARD 

  

 
 
On February 8, 2008, the Board sent the applicant a copy of the views of the Coast Guard 
and gave him 30 days to submit a rebuttal.  On March 6, 2008, the applicant requested and was 
granted a 30-day extension to submit a rebuttal.  The Board did not receive a rebuttal from the 
applicant.  
 

FINDINGS AND CONCLUSIONS 

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

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

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

States Code.   

 
 
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.      This  application  was 
submitted approximately thirteen years beyond the statute of limitations.   The applicant did not 
state the date on which he discovered the error, but he should have discovered it at the time of his 
discharge  because  he  signed  a  statement  requesting  an  other  than  honorable  discharge  for  the 
good  of  the  service  and  he  also  signed  his  DD  Form  214  that  showed  the  character  of  his 
discharge.  He did offer an explanation for why he could not have brought his application sooner, 
except to state that he was recently advised that he could request an upgrade.  This explanation is 
not persuasive to the Board.   
 

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."   
 

4.    With respect to the merits, the Board finds that the applicant is not likely to prevail.  
The  unsigned  letter  purportedly  from  the  applicant  to  his  Commander  offering  to  accept  an 
honorable administrative discharge in lieu of a re-sentencing hearing is not proof that the offer 
was ever communicated to or accepted and approved by the Coast Guard.  This is particularly 
true when the applicant’s military record contains a letter signed by the applicant and his military 
counsel,  stating  that  the  applicant  would  accept  a  discharge  under  other  than  honorable 
conditions  in lieu  of  a  re-sentencing  hearing  on  his  conviction  for  the  wrongful  use  of  illegal 
drugs.  Documents in the military record show that the applicant’s request for a discharge under 
other  than  honorable  conditions  was  approved  by  military  authorities  and  the  applicant  was 
discharged accordingly.  There is no evidence in the record that the Coast Guard ever promised 
the  applicant  anything  but  a  discharge  under  other  than  honorable  conditions  in  lieu  of  re-
sentencing hearing.   

 
5.  The applicant has presented no evidence establishing that he is entitled to have his 
discharge upgraded as the plaintiff did in Giles v. Secretary of the Army, 627 F.2d 554 (D.C. Cir. 
1980).  In that case, Giles was identified as a drug abuser through a compelled urinalysis and 
placed into involuntary treatment.  Apparently while in treatment he was compelled to provide 
other urine samples, all of which were collected by the Army without providing the applicant 
with  his  Article  31(b)  warnings  (rights  against  self-incrimination).    The  Army  eventually 
discharged Giles with a general discharge (less than an honorable discharge) on the ground that 
he was a drug rehabilitation failure.  During the administrative discharge proceedings, the Army 
used  evidence  from  the  compelled  urinalyses  against  Giles.    In  ordering  Giles’s  general 
discharge  upgraded  to  an  honorable  one,  the  Giles  Court  stated  that  the  “Court  of  Military 
Appeals decision in United States v. Ruiz, 23 C.M.A. 181, 48 C.M.R. 797 (1974) . . . invalidated 
an order compelling urinalysis where the test results might be used in administrative discharge 
proceedings where the service member could be issued a less than fully honorable discharge. The 
military court held such an order violative of the Article 31 prohibition against compelled self-
incrimination.” Giles at 557.   In this case, the applicant has presented no evidence that his right 
against  self  incrimination  was  violated  with  respect  to  the  collection  of  his  urine  sample.  
Accordingly, the applicant has not shown Giles to be applicable in his case and nothing in the 
regulation  prohibits  awarding  the  applicant  a  discharge  under  other  the  honorable  conditions 
under the circumstances of this case.    

 
6.    The  Board  would  further  note  that  the  applicant  with  the  assistance  of  counsel 
requested a discharge under other than honorable conditions for the good of the Service rather 
than  face  a  rehearing  on  sentencing  for  his  special  court-martial  conviction  for  illegal  use  of 
cocaine.    The  applicant  also  waived  his  right  to  an  administrative  hearing  and  elected  not  to 
submit a statement in his own behalf.   

 
7.    There  was  no  requirement  for  the  Coast  Guard  to  provide  the  applicant  with 
rehabilitative  treatment  or  drug  counseling  for  use  of  illegal  drugs  before  referring  charges 
against him to a court-martial or before administratively separating the applicant from the Coast 
Guard.   

 
 
8. The applicant has failed to put forth evidence of probable error or injustice in this case. 
Accordingly, 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 XXXXXXXXX, USCG, for correction of his military record is 

ORDER 

 
 
denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 

 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

        

 
 Jeff M. Neurauter 

 

 

 
 Lynda K. Pilgrim 

 

 

 
 
 Eric J. Young