DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2008-082 
 
xxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxx   

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 February 29, 2008, upon 
receipt of the applicant’s completed application and military record, and assigned it to staff mem-
ber 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 November 6, 2008, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

The applicant asked the Board to correct his military record by upgrading his February 
17, 2005, bad conduct discharge (BCD), which was part of his sentence following his conviction 
by a special court-martial on July 26, 2001.   The applicant alleged that the BCD was “too harsh 
for [his] offenses” as he was only 22 years old at the time.  In addition, he stated that he request-
ed drug treatment but was instead unfairly charged with a crime.  He alleged that in the other 
Armed  Forces,  someone  who  uses  illegal  drugs  is  provided  drug  treatment  and  does  not  face 
criminal charges.  The applicant stated that he has learned from his mistake and wants his BCD 
upgraded.  He did not submit any evidence to support his allegations. 
 

SUMMARY OF THE RECORD 

 
 
In September 1999, at the age of 20, the applicant enlisted in the Coast Guard and signed 
a service record entry acknowledging that the had been counseled about the Coast Guard’s drug 
policies.  While attending bootcamp, he completed a Substance Abuse Free Environment Aware-
ness Course. 
 
 
On January 16, 2000, the officer in charge (OIC) entered a CG-3307 form (“Page 7”) in 
the applicant’s record noting that he had reported back from liberty 24.5 hours late and had made 
no attempt to contact the unit. 
 

 
On February 14, 2000, the OIC entered a Page 7 in the applicant’s record reporting that 
on February 10, 2000, he was found to be incoherent and losing consciousness after returning 
from  liberty.    The  applicant  blamed  his  condition  on  a  combination  of  beer  and  Paxil  even 
though he had been told not to consume alcohol while taking Paxil.  Therefore, the applicant was 
referred to an addictions prevention center.  The OIC documented this event as the applicant’s 
first “alcohol incident” and noted that any further alcohol incident might result in the applicant’s 
discharge. 
 
 
On  March  6,  2000,  the OIC  entered  a  Page  7  in  the  applicant’s  record  noting  that  the 
applicant had made “little to no effort” to complete his boat crewmember qualifications.  The 
OIC advised the applicant that he had to complete the qualifications by April 6, 2000, or face 
disciplinary measures. 
 
 
pleted a four-day Navy Alcohol Impact Course. 
 
 
On  April  12,  2000, the OIC  entered  a  Page  7  in  the  applicant’s  record  noting  that  the 
applicant had failed to complete his boat crewmember qualification and assigning the applicant 
two hours of extra military instruction every day until he completed the qualifications. 
 
 
On April 25, 2000, the OIC entered a Page 7 in the applicant’s record noting that he had 
reported for work late three days in a row and had made no attempt to contact the unit.  The OIC 
warned the applicant that any future repetition of this conduct would result in disciplinary action. 
 
 
pay his debts and repeated failure to “make good” on one “NSF check” in particular. 
 

On May 8, 2000, the OIC entered a Page 7 in the applicant’s record noting his failure to 

A Page 7 in the applicant’s record notes that on March 31, 2000, he successfully com-

On May 9, 2000, the OIC entered a Page 7 in the applicant’s record noting that he had 
reported for duty unshaven and in a uniform in disarray.  The OIC warned the applicant that any 
future repetition of this conduct would result in disciplinary action. 

 
On May 17, 2000, the OIC entered a Page 7 in the applicant’s record noting that a local 
check-cashing company had complained that the applicant had written an “NSF check” on May 
16, 2000. 

 
On May 22, 2000, the OIC entered a Page 7 in the applicant’s record noting that he had 
reported for duty unshaven and in a uniform in disarray.  The OIC required the applicant to study 
the Uniform Regulations Manual and present training to the unit on it on May 29, 2000.  He also 
warned the applicant that any future repetition of this conduct would result in disciplinary action. 

 
On  May  25,  2000,  the  OIC  entered  a  Page  7  in  the  applicant’s  record  noting  that  the 
check-cashing company had called again to complain that the applicant had not followed through 
on a repayment schedule he had agreed to on May 17, 2000, contrary to a direct order.  The OIC 
also warned the applicant that any future repetition of this conduct would result in disciplinary 
action. 

 

On May 26, 2000, the OIC entered a Page 7 in the applicant’s record noting that another 

check-cashing company had called to complain that the applicant had written an “NSF check.” 

 
On May 30, 2000, the OIC entered a Page 7 in the applicant’s record noting that on May 
17, 2000, when ordered to “come clean,” the applicant had denied the possibility that there were 
any more outstanding NSF checks, which was a false statement in disobedience of a direct order. 

 
On July 6, 2000, the OIC entered a Page 7 in the applicant’s record noting that the appli-
cant had left town without permission and contrary to orders on July 3 and 4, 2000, when he was 
assigned to the boat crew.  In addition, he had told different lies about his whereabouts on those 
days. 

 
On July 11, 2000, the applicant was charged with being absent without leave (AWOL) 
from  July  3  to  July  5,  2000,  and  traveling  outside  a  100-mile  radius  during  hurricane  season 
contrary to orders, in violation of Articles 86 and 92 of the UCMJ. 

 
On July 21, 2000, the OIC reported to the Group Commander that although the applicant 
had started out with a positive attitude, his attitude deteriorated quickly and he had repeatedly 
gotten into conflicts with other junior personnel and his supervisors.  The OIC reported that dis-
ciplinary measures had had no effect on the applicant’s conduct. 
 
 
On  August  2,  2000,  the  applicant  was  awarded  nonjudicial  punishment  (NJP)  at  mast 
under Article 15 of the UCMJ for his offenses from July 3 to July 5, 2000.  At mast, he was sen-
tenced to reduction in rate from E-2 to E-1 and 45 days of extra duties.  However, on August 18, 
2000, the Group Commander suspended the sentence for six months based upon the advice of a 
doctor who stated that the applicant needed rehabilitation treatment.  He noted that the applicant 
would  be  placed  on  performance  probation  and  that  if  he  failed  to  comply  with  all  rules  and 
regulations during the six-month probationary period, the suspension of the sentence would be 
vacated and he would be recommended for discharge.  The applicant also received an unsatis-
factory performance evaluation with extremely low marks in many categories (marks of 1 and 2 
on a scale from 1 (lowest) to 7 (best)). 
 

On  September  6,  2000,  the  applicant’s  command  noted  in  his  record  that  he  had  been 
diagnosed as alcohol dependent and ordered to abstain from consuming alcohol indefinitely, to 
attend intensive rehabilitation treatment, and to comply with an aftercare program. 
 
On November 7, 2000, the applicant completed his intensive rehabilitation treatment and 
 
returned  to  duty  on  performance  probation  for  inaptitude,  financial  irresponsibility,  and  not 
adhering to core values.  He was advised on a Page 7 that if he did not show progress during the 
six months, the command would initiate an administrative discharge. 
 
 
tion with extremely low marks in many categories. 
 
 
On March 2, 2001, the applicant’s Commanding Officer entered a Page 7 in his record 
noting that an investigation had revealed that the applicant had violated the cutter’s telephone 

On February 1, 2001, the applicant received another unsatisfactory performance evalua-

and  computer  rules  many  times.    In  addition,  the  applicant  had  been  “caught  smoking  on  the 
bridge wing, sleeping in the engine room, and ‘gun decking’ engine room readings.  The Page 7 
states that the applicant had demonstrated that he was “unwilling to put forth even the minimum 
effort required to become a qualified contributing member of [the crew] or the Coast Guard.” 
 
 
On March 2, 2001, the Group Commander notified the applicant that he intended to initi-
ate  the  applicant’s  discharge  because  of  his  “repeated  absenteeism,  unwillingness  to  perform 
duties, tardiness, lack of reliability in payment of financial debts, an nonconformity with Coast 
Guard Uniform Regulations.”  He noted that the applicant’s performance had not improved dur-
ing his probationary period and advised the applicant of his right to submit a statement. 
 
 
On March 2, 2001, the applicant responded to the Group Commander’s notification.  He 
waived his right to submit a statement and to consult counsel and noted that he did not object to 
being discharged. 
 
 
On March 5, 2001, the applicant’s Group Commander asked the Coast Guard Personnel 
Command (CGPC) for authorization to discharge the applicant due to his “unwillingness to per-
form  prescribed  duties,  inaptitude  and  failure  to  adhere  to  Coast  Guard  core  values.”    He 
attached to his request, the applicant’s acknowledgment of notification and waiver of rights. 
 
 
On March 9, 2001, CGPC authorized the applicant’s honorable discharge for unsuitabil-
ity.  However, on March 28, 2001, the Group command asked CGPC to delay the applicant’s 
discharge  because  he  was  the  subject  of  an  investigation  that  would  likely  lead  to  criminal 
charges under the Uniform Code of Military Justice (UCMJ) and judicial action.  On April 4, 
2001, CGPC agreed to the delay of the applicant’s discharge. 
 
 
 
On  July  26,  2001,  the  applicant  was  convicted  by  a  special  court-martial,  having  pled 
guilty to several charges under the UCMJ.  The investigation had revealed that he had wrong-
fully  possessed  and  used  OxyContin  on  divers  occasions  and  that  he  had  gone  AWOL  again.  
The court’s order indicates that he pled guilty to (1) wrongful possession and use of a controlled 
substance in violation of Article 112a, UCMJ; (2) wrongful appropriation of military property of 
a value in excess of $100 (a vehicle) on May 11, 2001, in violation of Article 121, UCMJ; (3) 
breaking restriction by leaving base on May 11, 2001, in violation of Article 134, UCMJ; (4) 
unauthorized absence from May 11 to 12, 2001, in violation of Article 86, UCMJ; and (5) dis-
obeying a lawful order on May 12, 2001, in violation of Article 92, UCMJ.  Some specifications 
were withdrawn under a pre-trial agreement.  He was sentenced to reduction in pay grade to E-1 
and confinement for six months to be followed by a BCD. 
 

On July 31, 2001, the applicant received another unsatisfactory performance evaluation 

 

with extremely low marks in many categories.   
 

On  August  27,  2001,  the  applicant  was  placed  on  “required  appellate  leave  pending 
appellate  review”  of  his  case.    His  notification  noted  that  members  are  not  entitled  to  pay  or 
allowances while on appellate leave unless, on appeal, the charges are dismissed or the BCD is 
set aside or remitted. 

On November 8, 2001, the convening authority for the special court-martial approved the 
applicant’s sentence but suspended the last month of confinement.  The applicant appealed to the 
Coast Guard Court of Criminal Appeals, claiming that the specification of possession should be 
dismissed as a lesser included offense of use of a controlled substance; that the specification of 
unauthorized absence should be dismissed as a lesser included offense of breaking restriction; 
and that the BCD was “inappropriate severe for a junior enlisted member who self-referred for 
addiction to OxyContin when the OxyContin was initially prescribed by a Coast Guard contract 
physician.”   

 
On June 30, 2003, the Court of Criminal Appeals affirmed the conviction for possession 
but set aside the unauthorized absence charge as a lesser included offense in breaking restriction.  
Regarding the applicant’s third assignment of error and the BCD, the court stated that he 

 
• 
the applicant.   

 
was  initially  prescribed  OxyContin  for  a  spider  bite  by  a  Coast  Guard  contract 
physician,  but  [he]  did  not  seek  help  from  the  prescribing  doctor  for  possible 
addiction, choosing, instead, to abuse the drug with illegal purchases upon deple-
tion  of  the  prescribed  pills.    Subsequently,  at  a  time  when  [the  applicant]  was 
expecting  administrative  discharge  from  the  Coast  Guard  for  other  reasons,  he 
sought  treatment  for  addiction  to  OxyContin  by  contacting  his  Command  Drug 
and Alcohol Representative (CDAR) concerning his drug problem.  As a result, 
[he] was hospitalized, and later enrolled in a post-hospitalization counseling pro-
gram  after  his  inpatient  stay  was  completed.    Thereafter,  [he]  was  disenrolled 
from  the  post-hospitalization  counseling  program  for  attendance  failures.    In 
evaluating  the  appropriateness  of  [his]  sentence,  we  have  noted  these  circum-
stances, as well as his convictions for offenses other than OxyContin possession 
and  use,  such  as  violation  of  a  lawful  order,  breaking  restriction,  and  wrongful 
appropriation  of  military  property.    Contrary  to  the  arguments  advanced  in  the 
third assignment of error, we have concluded that a bad conduct discharge is not 
unduly severe punishment for [the applicant] and his offenses.  Accordingly, that 
assignment of error is rejected. …  
 
…  The  sentence  has  been  reassessed  in  light  of  the  dismissed  unauthorized 
absence  specification,  and  we  are  convinced  that  the  adjudged  sentence  would 
have been the same if that offense had been dismissed earlier by the judge at trial.  
Moreover, we have concluded that the sentence approved below is appropriate for 
this  appellant  and  his  offenses,  and  on  the  basis  of  the  entire  record  should  be 
approved. 
 
On July 28, 2003, the JAG certified the case for review.  On March 30, 2004, the U.S. 
Court  of  Appeals  for  the  Armed  Forces  issued  a  decision  reversing  the  decision  of  the  lower 
court because it found that the applicant’s two-day unauthorized absence was a separate offense 
not necessarily included in the offense of breaking restriction.  In so holding, the court noted the 
following facts: 

In March 2000, a Coast Guard civilian doctor had prescribed the drug OxyContin for 

•  After his prescription ended, the applicant illegally obtained and continued to use the 
drug.   
•  After the applicant admitted his addiction to a doctor, the Coast Guard placed him in  
inpatient rehabilitation treatment and then daily outpatient treatment. 
•  After the applicant skipped several meetings that were required as part of his outpa-
tient  program,  his  command  restricted  him  to  base  to  ensure  his  presence  at  trial  for 
alleged possession of OxyContin. 
•  While under restriction, the applicant requested a urinalysis to prove that he was not 
using OxyContin, but he failed to report for the scheduled urinalysis on May 11, 2001, 
and  instead  took  a  command  vehicle  without  authorization  and  drove  off  the  base.    A 
municipal police officer stopped him the next day for driving erratically and arrested him 
when he discovered that the vehicle had been reported as stolen. 

 
 
On November 17, 2004, the Commandant denied clemency and approved the execution 
of the applicant’s BCD.  On January 5, 2005, the Officer Exercising General Court-Martial Juris-
diction  over  the  applicant  ordered  the  BCD  executed.    On  February  17,  2005,  the  BCD  was 
executed. 
 

VIEWS OF THE COAST GUARD 

On July 15, 2008, the Judge Advocate General (JAG) submitted an advisory opinion in 

 
 
which he recommended that the Board deny the requested relief. 
 
 
The JAG argued that the applicant’s BCD was warranted not only as part of his court-
martial sentence but also by  the  evidence of his misconduct in his military record.  The JAG 
stated that although the applicant claims that he was punished simply for requesting drug addic-
tion treatment, this claim is not supported in the record and he offered “no evidence, other than 
his self-serving declaration, to rebut the presumption afforded to the Coast Guard chain of com-
mand.” 
 

The JAG also adopted the findings and analysis provided in a memorandum on the case 
prepared by CGPC.  CGPC reviewed the applicant’s record of misconduct and stated that the 
BCD was “appropriate” in light of his offenses.   
 
 
CGPC  stated  that  even  if  the  Board  waives  the  statute  of  limitations,  relief  should  be 
denied because a “complete review of the applicant’s record does not reveal an error or injustice 
with  regards  to  his  processing  for  separation.”    CGPC  stated  that  the  applicant’s  bad  conduct 
discharge  was  part  of  his  sentence  upon  conviction  of  several  serious  offenses  and  that  the 
Commandant  denied  clemency  upon  review  and  ordered  that  the  BCD  be  executed.    CGPC 
stated that the BCD was “just and commensurate … with the nature of the applicant’s offenses. 
… There is no justification for upgrading his character of service.”  CGPC submitted copies of 
several documents from the applicant’s military record, including the August 28, 1975, clemency 
memorandum recounting the applicant’s offenses and testimony about racial tension. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On July 17, 2008, the Chair sent the applicant a copy of the advisory opinion and invited 

 
 
him to respond within thirty days.  No response was received. 
 

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: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552(a) 
and (f)(2), which authorize the Board to take “action on the sentence of a court-martial for pur-
poses of clemency.” 

 
2. 

 
3. 

 
4. 

 

Under 10 U.S.C. § 1552(b), an application to the Board must be filed within three 
years after the applicant discovers the alleged error in his record.  The applicant’s BCD was exe-
cuted on February 17, 2005, and the Board received his DD 149 within three years of that date.  
Therefore, his application is timely.   

The applicant alleged that his BCD was unduly harsh in light of his circumstances 
and offenses.  The record indicates that the applicant was first prescribed OxyContin, an addic-
tive  drug,  by  a  Coast  Guard  contract  physician  in  March  2000  because  of  a  spider  bite.    He 
became addicted and, after his prescription ended, bought and used OxyContin illegally.  When 
he eventually advised a Coast Guard doctor of this problem, the Coast Guard provided him with 
intensive  inpatient  rehabilitation  followed  by  outpatient  treatment.    However,  he  apparently 
failed rehabilitation, began missing his outpatient meetings, broke restriction, misappropriated a 
Government vehicle, and went AWOL for two days before he was arrested by municipal police.  
The  Board  also  notes  that  Page  7s  in  the  applicant’s  record  indicate  that,  even  before  he  was 
prescribed  OxyContin,  he  was  not  a  good  performer:  During  his  first  three  months  following 
bootcamp, he had returned more than a day late from liberty, incurred his first “alcohol incident,” 
and made “little to no effort” to complete his boat crewmember qualifications. 

The  Board  begins  its  analysis  in  every  case  by  presuming  that  the  disputed 
information in the applicant’s military record is correct as it appears in his record, and the appli-
cant bears the burden of proving by a preponderance of the evidence that the disputed record is 
erroneous  or  unjust.1    Absent  evidence  to  the  contrary,  the  Board  presumes  that  Coast  Guard 
officials and other Government employees have carried out their duties “correctly, lawfully, and 
in good faith.”2  

                                                 
1 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases prior to the promulgation of the latter 
standard in 2003 in 33 C.F.R.§ 52.24(b)). 
2 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

5. 

The applicant submitted nothing to support his contention that his BCD was too 
harsh in light of the circumstances of his case and his offenses.  Moreover, although the applicant 
claimed that he should have been sent to rehabilitation because he admitted his addiction, the 
record shows that the Coast Guard did in fact provide both inpatient and outpatient rehabilitative 
treatment.  However, he failed rehabilitation and missed his outpatient meetings.  In addition, he 
broke restriction, misappropriated a Government vehicle, and went AWOL until he was appre-
hended by local police.   

 
6. 

 
7. 

The record shows that the applicant was represented by an attorney throughout the 
proceedings, that he received all due process, and that the Coast Guard committed no error in 
separating him with a BCD.  However, under 10 U.S.C. § 1552(a), the Board may “remove an 
injustice”3  from  a  veteran’s  record,  as  well  as  correct  an  error  in  the  record.    Therefore,  the 
Board’s review should consider whether the applicant’s BCD now constitutes an injustice.  With 
respect  to  upgrading  discharges,  the  General  Counsel  of  the  Department  of  Transportation 
informed  the  BCMR  on  July  7,  1976,  that  it  should  not  upgrade  a  discharge  based  on  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 disproportion-
ately severe vis-à-vis the conduct in response to which it was imposed.”  The record indicates 
that the circumstances of the applicant’s case, in particular the way he became addicted to Oxy-
Contin and the fact that he originally admitted his problem and requested and received rehabili-
tation treatment, were taken into consideration by the judge in determining his sentence, the con-
vening authority in approving the sentence, the Commandant in reviewing the sentence, and the 
appellate courts, which affirmed his BCD.  The Board is not persuaded that the applicant’s BCD 
is unfair simply because of the circumstances of his addiction and treatment.  The applicant has 
not proved by a preponderance of the evidence that his BCD was disproportionately severe in 
light of today’s standards.4    

The Board does not, however, construe the 1976 guidance as prohibiting it from 
exercising clemency in court-martial cases under 10 U.S.C. § 1552(f), even if the discharge was 
not disproportionately severe in light of today’s standards.  Such a construction would be incon-
sistent with the nature of “clemency,” which means “kindness, mercy, leniency.”5   Clemency 
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 unjust at the time or would be 
unjust  if  applied  to  a  similarly  situated  servicemember  today;  a  clemency  analysis  considers, 
instead, whether it is appropriate today to forgive the past offense that led to the punishment and 
to mitigate the punishment accordingly.  However, there are no grounds in the record for grant-
ing clemency.  The applicant has presented no evidence of facts that were not known at the time 

                                                 
3 For the purposes of the BCMRs, “‘[i]njustice’, when not also ‘error’, is treatment by the military authorities, that 
shocks the sense of justice, but is not technically illegal.” Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).  
The Board has authority to determine whether an injustice exists on a “case-by-case basis.” Docket No. 2002-040 
(DOT BCMR, Decision of the Deputy General Counsel, Dec. 4, 2002). 
4 Under the sentencing guidelines of the UCMJ, the applicant would likely receive a BCD if he were convicted of 
the same offenses today. See Manual for Courts-Martial United States (2008). 
5 BLACK’S LAW DICTIONARY (5th ed.) 

of  his  trial  and  appeal  or  of  post-discharge  conduct  that  would  warrant  forgiving  his  several 
offenses under the UCMJ. 
 

 

8. 

Accordingly, the applicant’s request should be denied. 

 

 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

his military record is denied.   

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Evan R. Franke 

 

 
 
 Jordan S. Fried 

 

 

 

 
 
 Robert S. Johnson, Jr. 

 

 

 

 

 

 

 

 

 

 

The application of former SR xxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

ORDER