DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2008-021 
 
xxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxx   

 

 
 

FINAL DECISION ON RECONSIDERATION 

 
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 October 26, 2007,1 upon 
receipt of the applicant’s completed application, and assigned it to staff member J. Andrews to 
prepare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  June  12,  2008,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a former seaman who was discharged on October 8, 1951, asked the Board 
to upgrade the character of his discharge from General to Honorable.  The applicant originally 
received a Bad Conduct Discharge (BCD) under other than honorable conditions.  He applied to 
this Board for an upgraded discharge in 1953, and his request was denied.  However, in 1957, the 
Board reconsidered his case in BCMR Docket No. 432 and upgraded his discharge from BCD to 
General. 
 

The applicant alleged that it is in the interest of justice for the Board to upgrade his dis-
charge because he believes “the incident leading to [his] discharge did not warrant such a severe 
discharge.”  He stated that he is an upstanding citizen who has led an honorable life raising his 
family.  He retired from a railroad company after 38 years of service. 
 
 
The applicant alleged that the incident for which he was separated “did not warrant such 
a severe discharge status.”  He alleged that in the spring of 1951, he was in a bar when two Navy 
patrolmen entered and told him “to square [his] hat or remove it,” so he did.  Then they accused 
him of wearing “tailored made blues,” which were not allowed, and one of the patrolmen left, 
saying he was going to call for transport to take the applicant to the brig.  While he was gone, the 
                                                 
1 The application was inadvertently docketed as a new case because the applicant’s prior applications to the BCMR 
were not discovered until several months after the case was docketed.  Therefore, although the application did not 
meet the requirements for reconsideration under 33 C.F.R. § 52.67, the Board will reconsider the case. 

other  patrolman  told  him  to  “get  out  of  here”  because  his  partner  was  overreacting.    But  the 
applicant did not leave and, when the other patrolman returned, “got into a verbal and physical 
altercation with him” because the applicant had been drinking alcohol.  Therefore, the applicant 
was taken to the brig for one night and then returned to his ship.  The applicant argued that he 
deserved only a warning but instead was discharged because of this incident.  He explained that 
he was first taken to mast, and when he pled not guilty, the commanding officer “said he would 
give [the applicant] a chance to prove it and gave [him] a general court martial.”  The officer 
assigned to represent the applicant urged him to plead guilty, but the applicant refused.  Upon the 
advice of a Marine officer, the applicant hired a civilian attorney to represent him but was con-
victed and sentenced to serve nine months at a retraining base since the judge said he “was suit-
able material for rehabilitation.”  However, a reviewing authority at Coast Guard Headquarters 
reduced his sentence to two months and so the applicant was quickly discharged with a BCD just 
a month shy of the end of his enlistment.  
 
Although the Board has since upgraded his BCD to a General discharge, the applicant 
 
argued that an Honorable discharge would be “more appropriate considering [his] entire length 
of service to the Coast Guard, [his] otherwise satisfactory record, [his] voluntary reenlistment to 
support the Korean War effort, the initial determination of the court and the seemingly excessive 
punishment as related to the incident.” 
 

SUMMARY OF THE RECORD 

 
 
On November 24, 1948, the applicant—then 17 years old—enlisted in the Coast Guard 
for three years.  (He had previously enlisted in the Navy at age 16, but was discharged after 2 
months upon the discovery of his age.)  On February 10, 1949, he advanced from seaman recruit 
to  seaman  apprentice.    Various  mast  and  court  reports  in  the  applicant’s  record  document  his 
offenses and punishment as follows: 
 

•  On May 31, 1949, the applicant was taken to captain’s mast for being out of uniform, 
shirking duty, and showing disrespect to a petty officer.  He was awarded 25 hours of 
extra duty and 5 days’ restriction.   

 
•  On June 30, 1949, the applicant was taken to mast for being absent over leave (AOL) for  

 

 

2 hours.  He was awarded 8 hours of extra duty. 

 
•  On August 24, 1949, the applicant was taken to mast for being AOL for 11 hours.  He 

was awarded 20 hours of extra duty. 

•  On September 28, 1949, the applicant was taken to mast for failing to make reveille.  He 

was awarded 6 hours of extra duty. 

•  On October 20, 1949, the applicant was tried by deck court for being out of uniform and 
having no identification card while on shore on October 12, 1949.  He was awarded a fine 
of $10.00. 

 

•  On October 25, 1949, the applicant was taken to mast for returning from liberty out of 
uniform and impersonating a petty officer.  He was awarded 20 hours of extra duty and  
5 days’ restriction. 

•  On November 27, 1949, the applicant was taken to mast for returning from liberty out of 
uniform and failing to return a proper salute upon his return.  He was awarded 20 hours 
of extra duty and 5 days’ restriction. 

•  On January 18, 1950, the applicant was taken to mast for failing to make reveille and was 

awarded 6 hours of extra duty. 

•  On  February  9,  1950,  the  applicant  was  taken  to  mast  for  having  an  unmade  bunk  at 

inspection.  He was awarded loss of one liberty period. 

•  On February 13, 1950, the applicant was taken to mast for failure to make reveille and 
was awarded 3 days’ restriction.  The report notes that the applicant had been placed on 
report several times for not making reveille.   

•  On April 12, 1950, the applicant was tried by deck court for failing to obey an order by 
refusing to stand watch when ordered to do so.  A petty officer noted that when told that 
he would be placed on report if he did not stand watch, the applicant told the petty officer 
to go ahead and place him on report.  The investigating officer noted it was the eleventh 
time that the applicant had been punished for offenses and that the applicant “is as close 
to being a hopeless case as we have on this ship.  He has absolutely no conception of dis-
cipline.”  The applicant was awarded a $20 fine and extra duty for one month. 

 

 

 

 

 

 

•  On  May  17,  1950,  the  applicant  was  tried  by  summary  court-martial  for  using  liquor 
aboard ship and creating a disturbance.  He pled guilty and was sentenced to 3 months of 
extra duty and loss of $25 of pay per month for 6 months. 

 
 
On May 3, 1951, the Officer in Charge of the cutter reported to the District Commander 
that the applicant had been returned to the cutter under guard by the Navy patrol on April 30, 
1951, under charges of wearing a non-regulation uniform, using obscene language, assault, and 
resisting arrest.  The Officer in Charge reported that, when asked why he had behaved as charged 
by the Navy patrolmen, the applicant admitted to the offenses but also said he could not remem-
ber what had happened  the night before and must have been “too drunk to know any better.”  
The Officer in Charge stated that he had transferred the applicant off the cutter for disciplinary 
action because of his history of similar offenses. 
 
 
On May 23, 1951, the applicant was tried at general court-martial for (1) using obscene, 
abusive, and threatening language by telling a Navy patrolman on April 30, 1951, “‘You’re a lit-
tle shit, a mother fucker, and a no-good regulation son-of-a-bitch, and I’m going to stamp your 
ass,’ or words to that effect”; (2) forcibly resisting arrest by the Navy patrolman; and (3) com-
mitting conduct to the prejudice of good order and discipline by assaulting the Navy patrolman.  
The  applicant  pled  not  guilty  but  was  found  guilty  on  all  charges.    His  sentence  was  to  be 
imprisoned for nine months and then discharged with a BCD.  The convening authority approved 

the guilty findings on charges (1) and (3) but disapproved the guilty finding on charge (2).  In 
addition,  the  convening  authority  approved  a  sentence  “for  a  bad  conduct  discharge  and  con-
finement for a period of two months” and forwarded the case for appellate review. 
 
 
On October 1, 1951, the District Commander affirmed the sentence of two months’ con-
finement to be followed by the BCD and ordered that the sentence be executed.  On October 8, 
1951, the applicant was discharged with the BCD.  His final average marks (on a 4.0 scale) were 
2.9 for proficiency in rating and 3.5 for conduct. 
 

SUMMARY OF APPLICANT’S PRIOR BCMR CASES 

 
 
In  BCMR  Docket  No.  270,  the  applicant  asked  the  Board  to  upgrade  his  BCD  to  an 
Honorable discharge.  The Board noted that the BCD was a permissible sentence for the offenses 
tried at the general court-martial because of the applicant’s prior convictions.  The Board denied 
relief, concluding that the BCD was neither erroneous nor unjust. 
 
 
In  July  1954,  the  Board  denied  the  applicant’s  request  for  reconsideration  of  his  case.  
However,  in  1957,  the  Board  docketed  a  subsequent  request  for  reconsideration  submitted 
through  the  applicant’s  congressman  as  BCMR  Docket  No.  432.    Upon  reconsideration,  the 
Board noted that, after enlisting, the applicant “had a good record for about six months” but was 
then “involved in a series of minor offenses” that culminated in his conviction by general court-
martial and sentence including the BCD.  The Board cited Law Bulletin No. 230 for the principle 
that a member awarded a short sentence and a BCD should not be in a worse position than a 
member awarded a longer sentence and a BCD who, because of the longer sentence, is sent to a 
retraining camp where one can earn the remission of a BCD.  (Members who successfully com-
pleted retraining camp could get their BCDs remitted if they served satisfactorily during a subse-
quent  six-month  probationary  period.)    The  Board  took  into  account  the  court’s  clemency 
recommendation,  the  youth  of  the  applicant,  and  the  nature  of  his  offenses  and  upgraded  his 
BCD to a General discharge.  As a result of the Board’s order, on June 10, 1957, the Coast Guard 
issued the applicant a General discharge certificate and a DD 215 to correct his DD 214 and paid 
him back pay of $178.20 “due under P.L. 220.” 

VIEWS OF THE COAST GUARD 

 
 
On March 12, 2008, the Judge Advocate General (JAG) of the Coast Guard recommend-
ed that the Board deny the applicant’s request.  The JAG adopted the findings and analysis pro-
vided in a memorandum on the case prepared by the Coast Guard Personnel Command (CGPC).  
CGPC noted that the application is untimely and that the applicant’s claim and position “in the 
current application is patently the same as that presented in Docket No. 432 … . The applicant 
should be denied due to untimeliness and lack of merit.” 
 
 
CGPC further noted that the applicant’s record “reveals a pattern of misconduct” and that 
the BCD was upheld upon review. … A complete review of the applicant’s record given his sig-
nificant  breaches  of  conduct  supports  the  award  of  a  general  discharge.  …  Applying  today’s 
standards, it is unlikely the applicant would be awarded a discharge with a character of service 
any higher than his current General discharge.”  CGPC stated that the applicant’s repeated mis-

conduct contradicts his claim to having an “otherwise satisfactory record” and that his General 
discharge is not “unjust or disproportionate for his offenses and service.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  March  16,  2008,  the  applicant  responded,  stating  that  he  agreed  with  the  Coast 
Guard’s recommendation.  He alleged that he did not ask the Board to reconsider his case earlier 
because he was not aware that he could ask for reconsideration. 
 
 
The applicant argued that had he been granted clemency, he could have been rehabili-
tated.    He  believes  he  was  “hastily  stripped  of  my  opportunities  to  serve  my  country.”    He 
alleged that he has served as a “father of four children, a mentor, and a career supervisor of many 
productive  employees.”    He  further  argued  that  he  was  a  young  man  and  should  have  been 
allowed to learn from his mistakes and retained on active duty instead of being discharged. 
 
 
of his request for an Honorable discharge. 
 

On April 7, 2008, the Board received a letter from the applicant’s congressman in support 

APPLICABLE REGULATIONS 

 
 
Under Chapter 12-B-4 of the Coast Guard Personnel Manual in effect in 1951, members 
could receive an Honorable discharge if (a) they were never convicted by a general court-martial 
and  were  convicted  not  more  than  once  by  a  special  court-martial  and  (b)  their  final  average 
marks were at least 2.75 for proficiency in rating and 3.25 for conduct.  Members could receive a 
General discharge if they had been convicted only once by a general court-martial or more than 
once by a special court-martial or if their marks did not meet the requirements for an honorable 
discharge.  Members could receive an Undesirable discharge for repeated petty offenses not war-
ranting trial by court-martial, habitual shirking, alcoholism, drug addiction, pathological lying, or 
sexual perversion.  BCDs and Dishonorable discharges could only be awarded by courts-martial. 
 
 
Under  Article  12.B.18.  of  the  Personnel  Manual  in  effect  today,  Commander,  CGPC, 
may authorize an Honorable, General, or Other than Honorable (OTH) administrative discharge 
for a member due to misconduct.  BCDs and Dishonorable discharges may only be awarded by 
court-martial. 
 

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. 

An application to the Board must be filed within three  years after the applicant 
discovers the alleged error in his record.2  A request for reconsideration must be filed within two 

1. 
 
2. 

                                                 
2 10 U.S.C. § 1552(b). 

years after the issuance of a decision by the Board.3  The applicant was discharged in 1951, and 
the Board issued a decision upgrading his discharge from a BCD to a General discharge in 1957.  
Therefore, his request was untimely. 

Pursuant to 10 U.S.C. § 1552(b), 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.”4 

5. 

 
The applicant argued that it is in the interest of justice for the Board to excuse his 
application’s untimeliness because he was unaware that he could request reconsideration of the 
Board’s decision.  The applicant’s claim is contradicted by the fact that after the Board denied 
relief  in  1953,  he  requested  reconsideration  in  both  1954  and  1957.    Moreover,  the  applicant 
apparently accepted the Board’s decision and failed to pursue further relief for 50 years.  The 
applicant’s argument regarding his 50-year delay is not compelling. 
 

 The  Board’s  review  of  the  record  indicates  that  the  applicant’s  request  has  no 
potential for success on the merits.  Although he now argues that his discharge was too severe for 
his  offenses,  in  1951  the  applicant  claimed  he  had  been  too  drunk  to  remember  what  he  had 
done.    Moreover,  a  member  today  may  receive  a  BCD  or  even  a  Dishonorable  discharge  for 
assaulting a petty officer under Article 91 of the Uniform Code for Military Justice.  In addition, 
in  the  Rules  for  Courts-Martial,  Rule  1003(b)(8)(C)  states  that  a  BCD  is  “appropriate  for  an 
accused  who  has  been  convicted  repeatedly  of  minor  offenses  and  whose  punitive  separation 
appears to be necessary.”  The applicant’s record reveals a long list of minor and not-so-minor 
offenses.  The applicant argued that he should have been granted clemency because of his youth, 
but the Board has already granted clemency by upgrading the applicant’s BCD to a General dis-
charge in BCMR Docket No. 432.  The applicant did not meet the minimum requirements for an 
Honorable discharge under Chapter 12-B-4 of the Personnel Manual in effect in 1951, and the 
Board is not persuaded that his General discharge is too harsh given his numerous offenses. 

 
3. 

 
4. 

 
6. 

The applicant further argued that an Honorable discharge is warranted because of 
his  post-discharge  efforts  as  an  upstanding  citizen,  father,  mentor,  employee,  and  supervisor.  
The Board notes that the applicant submitted no evidence whatsoever to support his assertions of 
continuous good behavior.  More significantly, however, in 1976 the delegate of the Secretary 
determined that the Board should not upgrade a discharge on the basis of post-discharge conduct 
alone and “should not upgrade a discharge unless it is convinced, after having considered all the 
evidence … that in light of today’s standards the discharge was disproportionately severe vis-à-
vis the conduct in response to which it was imposed.”5  As indicated in Finding 5, the Board is 
not convinced that the applicant’s General discharge is disproportionately severe. 
                                                 
3 33 C.F.R. § 52.67. 
4 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992); see also Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995). 
5 Memorandum from the General Counsel of the Department of Transportation to the BCMR (July 7, 1976). 

 
7. 

 
8. 

The Board does not construe the standard provided in the 1976 memorandum as 
prohibiting it from exercising clemency in court-martial cases under 10 U.S.C. § 1552(a) and (f), 
even  if  the  discharge  was  neither  disproportionately  severe  compared  to  the  misconduct  nor 
clearly inconsistent with modern Coast Guard standards.  Such a construction would be incon-
sistent with the very nature of “clemency,” which means “kindness, mercy, leniency.”6   Clem-
ency does not necessarily require that a sentence have been unjust or wrong; on the contrary, it 
can be (and often is) forgiveness of punishment that is otherwise appropriate.  An analysis under 
the  1976  guidance  primarily  considers  whether  the  past  discharge  was  unjust7  at  the  time  or 
would be unjust if applied to a similarly situated servicemember today; a clemency analysis con-
siders, rather, whether it is appropriate today to forgive the past offense that led to the punish-
ment and to mitigate the punishment accordingly.  

The Board has sometimes upgraded BCDs to General discharges when applicants 
were  young,  had  committed  only  one  major  offense  or  only  absence  offenses,  had  performed 
extensive sea duty during war, and/or had explanations for committing their offenses.8  In addi-
tion, the Board has sometimes upgraded BCDs to General discharges based on the fact that the 
veteran received less due process than one would today and has suffered the burden of his BCD 
for many years.9  However, the Board has already upgraded the applicant’s BCD to a General 
                                                 
6 BLACK’S LAW DICTIONARY (5th ed.) 
7 According to 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 but is not technically illegal.” 
8 For examples of BCDs upgraded to General discharges, see BCMR Docket No. 2005-105 (1 SCM for being AOL 
3 weeks and 1 GCM for being AOL 25 days); Docket No. 30 (3 deck courts for minor offenses; 1 GCM for being 
AWOL 44 days); No. 42 (1 mast for being AWOL 2 days; 1 GCM for being AWOL 28 days; upgraded on basis of 
youth (age at enlistment), 1 major offense, and 14 months of sea duty); No. 43 (1 mast for being AOL 2 days; 2 deck 
courts for being AOL 2 days and 6 days; 1 GCM for being AOL 10 days; violation of probation after 7 months of 
confinement by being AOL 11 days; upgraded on basis of extensive sea service “in Northern waters” and 7 months 
of confinement); No. 76 (2 masts for intoxication and for being AOL 4 hours; 1 GCM for being AWOL for 3 days 
and  missing  ship’s  movement;  upgraded  on  basis  of  youth,  possible  battle  fatigue,  and  extensive  sea  duty  in  the 
Pacific); No. 88 (1 GCM for being AWOL 80 days; violation of probation by being AOL 1 day; upgraded on basis 
of 6 months of confinement and one major offense following a year of sea duty); No. 93 (2 deck courts for being 
AOL 5 and 6 days; civil trial for petty larceny; 1 GCM for being AOL 15 days; upgraded on basis of 5 months of 
confinement and “us[ing] his AOL for a worthwhile purpose”); No. 100 (1 GCM for being AOL 42 days; upgraded 
on basis of 17 months of combat duty in Pacific, one major offense, and no probationary period); No. 127 (1 mast 
for being AOL 18.5 hours; 3 deck courts for disobedience; 1 GCM for disobedience and conduct to the prejudice of 
good  order;  upgraded  on  basis  of  youth,  inexperience,  and  lack  of  probationary  period);  No.  128  (1  GCM  for 
throwing a wad of paper at an officer and threatening to kill 2 officers after one of them used a racial slur during a 
group lecture; upgraded because “clemency is justifiable”); No. 132 (1 GCM for being AOL 6 days and missing 
ship’s movement; upgraded on basis of immaturity and only one offense); No. 165 (2 masts for being AOL 6 hours 
and 2 days; 1 deck court for being AOL 7 days; 1 GCM for being AOL 9 days and missing ship’s movement; sen-
tenced to reduction to SA, confinement for 3.5 years, and BCD; released after 4 months but violated probation by 
going AOL); No. 196 (1 SCM for being AOL 26 days; 1 GCM for being AOL 28 days; upgraded because absences 
were spent working on family farm after father was injured in car accident); No. 217 (1 GCM for being AOL and 
missing ship’s movement; sentenced to 6 months at hard labor and BCD; released after 3 months but violated pro-
bation by being AOL); No. 264 (2 masts; 1 SCM; 1 GCM for being AOL 20 days and missing ship’s movement; 2 
masts while in confinement for yelling “racial discrimination”; no probationary period). 
9 For examples of cases in which the Board upgraded BCDs to General discharges based primarily on the lack of 
due process in the past and/or the length of time the veteran had borne the burden of the BCD, see BCMR Docket 
No. 2005-107 (1 GCM for being AOL 29 days, 1 mast for attempted escape, and 1 mast for being AWOL 3 days); 
Docket No. 349-89 (World War II veteran with 2 masts for creating a disturbance and being AOL 2 days, 1 SCM for 

9. 

discharge based on his youth and the nature of his offenses, and there is no basis for granting 
additional clemency.  The long list of offenses committed by the applicant shows that for most of 
his  enlistment  he  was  a  significant  administrative  and  disciplinary  burden  to  the  Coast  Guard 
rather than an asset.10  In addition, the record indicates that he was represented by an attorney at 
trial, and his case underwent appellate review.   
 

Accordingly,  the  Board  should  not  waive  the  statute  of  limitations  because  the 
applicant cannot prevail upon the merits and additional clemency is not due in this case.  His 
request for an Honorable discharge should be denied. 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

                                                                                                                                                             
being AWOL 16 days, and another SCM for being AWOL 10 days and missing movement; upgrade based on length 
of time and youth; upgrade approved by delegate of the Secretary); No. 104-89 (1 SCM for 4 periods of AWOL 
totaling 71 days); No. 387-86 (1 SCM for being AOL 29 days and missing movement, and another SCM for being 
AOL 2.5 days, theft, and “scandalous [homosexual] conduct”; upgrade based on “length of time petitioner has suf-
fered under the onus of his [BCD]”); No. 143-81 (1 SCM for petty theft of camera during boot camp; dishonorable 
discharge mitigated to BCD; upgrade based youth and length of time); No. 27-81 (1 SCM for 2 periods of AWOL 
for 9 days and 32 days; 1 GCM for being AWOL 27 days; upgrade based on youth and length of time); No. 159-79 
(1 mast for neglect of duty; 1 SCM for being AWOL for 2 months; 1 GCM for being AOL 75 days; upgrade based 
on length of time and lack of mitigation of sentence); No. 149-79 (2 deck courts for being drunk and disorderly; 3 
SCMs for being AWOL 59 hours, 20 days, and then 1 day; upgrade based on length of time). 
10 This case is similar to BCMR Docket No. 2006-072, in which the Board granted no clemency on a BCD because 
during that applicant’s 5 years of active duty, he was taken to mast 10 times for a variety of petty offenses and was 
convicted of being AWOL 3 times by courts-martial.   
 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Evan R. Franke 

 

 
 Robert S. Johnson 

 

 

 
 
 Adrian Sevier 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

military record is denied.