DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                        BCMR Docket No. 2009-115 
 
xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxx   

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 after receiving the applicant’s 
completed application on March 27, 2009, and assigned it to staff member J. Andrews to pre-
pare 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 December 4, 2009, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a former machinery technician, third class (MK3/E-4), asked the Board to 
void his discharge and reinstate him on active duty.  The applicant stated that he was erroneously 
and unjustly discharged without due process on January 28, 2008, because of an alleged “pattern 
of  misconduct,”  which  did  not  exist.    If  the  Board  will  not  void  his  discharge,  the  applicant 
asked, as alternative relief, that the Board correct the narrative reason for separation on his DD 
214 (“Pattern of Misconduct”); his JKA separation code, which denotes an involuntary discharge 
“resulting from a pattern of misconduct of a discreditable nature with civil or military authori-
ties”; and his RE-4 reenlistment code, which makes him ineligible to reenlist. 
 

SUMMARY OF THE RECORD 

 
 
On January 29, 2002, the applicant enlisted in the Coast Guard.  He was assigned to the 
CGC MATINICUS and then attended MK “A” School and advanced to MK3/E-4.  He was next 
assigned  to  a  Maintenance  Augmentation  Team  of  a  Naval  Engineering  Support  Unit  in  San 
Juan, Puerto Rico. 
 

Police reports show that near midnight on or about May 10, 2006, the applicant was driv-
ing  a  vehicle  east  on  Route  26  past  a  public  housing  complex  between  downtown  San  Juan, 
Puerto Rico, and the San Juan airport.  He was driving at a speed that exceeded the legal speed 
limit.  His vehicle first struck the rear end of a car that was travelling in the far right lane of four 
east-bound lanes and then struck three other cars that were parked parallel to the road along the 

sidewalk.  The driver of the first car that was struck died of her injuries two months later, and 
someone else was also injured.  After the accident, police measured the applicant’s blood alcohol 
content (BAC) at .104, which was above the legal limit of .08. 
  

The applicant was originally charged with negligent homicide in violation of Article 109 
of the Penal Code of Puerto Rico; drag or speed racing in violation of Article 5.07 of the Traffic 
Code; and driving under the influence (DUI) of an intoxicating beverage in violation of Article 
7.02 of the Traffic Code.  However, the DUI charge was dropped when it was determined that the 
breathalyzer used to measure the applicant’s BAC had not been calibrated.  
  

At a bench trial on July 1, 2008, the applicant was convicted of violating Article 109 of 
the Penal Code (negligent homicide, third-degree, misdemeanor)1 and Article 5.07 of the Traffic 
Code (drag or speed racing).   

 
On September 4, 2008, the applicant was sentenced to serve a jail term of six months plus 
one day, with costs; to have his driver’s license suspended for six months; and to pay a fine.  
However, the applicant’s sentence was suspended upon several conditions, such as staying within 
the territorial boundary of Puerto Rico; visiting a social services technician; undergoing drug and 
alcohol tests; avoiding bars, gambling, and known criminals; and being employed or enrolled in 
school. 
 
On September 23, 2008, the applicant’s commanding officer (CO) informed him that he 
had initiated the applicant’s discharge by reason of misconduct pursuant to Article 12.B.18.b.1. 
of  the  Personnel  Manual  based  on  his  conviction  for  involuntary  homicide  and  his  suspended 
sentence and probation under the court’s custody.  The CO wrote that he had recommended that 
the applicant receive a General discharge.  He also notified the applicant that he had the right to 
consult an attorney, to object to his discharge, and to submit a statement on his own behalf. 

 
On  September  30,  2008,  the  applicant  acknowledged  having  consulted  an  attorney, 
objected to his discharge, and submitted a statement on his own behalf.  The applicant stated that 
he was “extremely affected with what has happened” but hoped to put the past behind him and 
continue serving his country and the Coast Guard.  He stated that he had received counseling and 
volunteered his time to serve at a soup kitchen and to sponsor movie nights for children in Coast 
Guard housing.  He stated that his job performance had not declined since the accident and that 
he  had  even  been  recommended  for  advancement  in  2008.    He  alleged  that  the  accident  was 
caused by someone who made an illegal stop in the middle of the freeway.  He stated that his 
accident could have happened to anyone.  He asked that, if he could not be retained on active 
duty, he receive an honorable discharge reflecting his years of good service without any negative 
performance feedback.  The applicant attached to his statement several character references from 
other members, which are summarized below. 

 

                                                 
1 33 L.P.R.A. § 4737 provides that any person who causes the death of another by reason of negligence will incur a 
misdemeanor, but a felony penalty in the fourth grade shall be imposed.  However, when the death is caused while 
the person is driving under the influence of intoxicating beverages or controlled substances or with a clear disdain 
toward the safety of other people or while the person is firing a firearm toward an indeterminate target, the person 
will incur a felony in the third grade. 

•  A  master  chief  petty  officer  stated that he had been the Executive Petty Officer of the 
applicant’s unit, the CGC MATINICUS, from 2002 through 2004; that the applicant had been 
invaluable in migrant operations because he spoke Spanish and had show great respect for others; 
and that although he did not know the details of the applicant’s pending discharge, he believed 
the applicant could still be an asset to the Coast Guard. 

•  MK2 B stated that he had known the applicant for three years and supervised him for one.  
He stated that the applicant was skilled, reliable, and dedicated to the Coast Guard.  He stated 
that the applicant was respectful and “demonstrated a positive and can-do attitude.” 

•  CWO Z stated that he served with the applicant on the MATINICUS in 2002 and 2003.  
the  applicant  treated  everyone  respectfully  and  showed  interest  in  learning  new  skills  and 
advancing.  He heard similar reports from the applicant’s superiors in San Juan. 

 

 

 

 

 

 

 

•  DC2 H stated that he met the applicant in July 2008 and found the applicant to be very 

friendly and helpful and a great shipmate. 

•  EM1  R  stated  that  he  had  worked  with  the  applicant  for  three  years  in  San  Juan.    He 
described the applicant as “an excellent person, shipmate, and worker,” who did not let personal 
problems affect his job performance.   

•  MK3 C stated that he had worked with the applicant for one and one-half years and “can 
say nothing but good things.”  He stated that the applicant was a responsible hard worker, good 
shipmate, and loyal friend. 

•  MKC M stated that while serving as the Engineering Petty Officer aboard a cutter home-
ported in San Juan from June 2006 to July 2008, he found that the applicant had a “tremendous 
work ethic” and was very loyal to his team and the cutters homeported in San Juan.  He stated 
that the applicant “was routinely the first one to accept responsibility for tasking and held himself 
and his shipmates to the highest standards of ethical and professional conduct.” 

•  EM3 H stated that the applicant is a great representative of the Coast Guard and a very 
knowledgeable  MK3.    He  stated  that  the  applicant  deserved  a  second  chance  because  he  had 
“sweated blood” for the Coast Guard. 

 
On October 31, 2008, the CO recommended that the applicant receive a general discharge 
under Article 12.B.18.b.1. of the Personnel Manual “for misconduct due to his conviction and 
sentence for involuntary homicide.”  He noted that the applicant was not entitled to an Adminis-
trative Discharge Board because he had less than eight years of military service.  The CO noted 
that the Coast Guard’s Second Chance program under Article 12.B.1.a. of the Personnel Manual 
did  not  apply.    The  CO  forwarded  with  his  recommendation  the  applicant’s  statement  and 
attachments and documents from the court and police concerning his arrest, conviction, and sen-
tence.  The Commander of the Maintenance and Logistics Command for the Atlantic Area for-
warded the recommendation to the Coast Guard Personnel Command (CGPC) but recommended 
that the applicant be retained on active duty despite the incident because his submissions showed 
that he was “truly remorseful and is committed to being of future benefit to the Coast Guard.” 

 
On December 29, 2008, CGPC ordered that the applicant receive an honorable discharge 
for misconduct on January 28, 2009, under Article 12.B.18. of the Personnel Manual because of 
his involvement of a “discreditable nature with civil or military authorities.”  CGPC noted that 
the applicant’s DD 214 should specify separation code JKA and “Pattern of Misconduct” as the 
narrative reason for separation. 

 
On January 16, 2009, an attorney for the applicant wrote to CGPC complaining that the 
applicant had not been notified that he would be discharged on January 28, 2009, until the week 
before.  The attorney stated that there was no pattern of misconduct and that the applicant was 
being discharged without due process.  He asked CGPC to delay the applicant’s discharge. 

 
On January 27, 2009, CGPC sent an email to the attorney stating that the applicant would 
receive  an  honorable  discharge  for  misconduct  in  accordance  with  Article  12.B.18.b.3.  of  the 
Personnel Manual.  He stated that there were three criteria for this type of discharge.  First, the 
alleged offense must carry the potential for a punitive discharge under the Uniform Code of Mili-
tary Justice (UCMJ).  Under Article 119 of the UCMJ, the maximum punishment for involuntary 
manslaughter included a punitive discharge.2  Second, the member’s conduct must warrant sepa-
ration, and CGPC had determined that the applicant’s conduct did.  Third, although the member 
did not have to be convicted or awarded non-judicial punishment for the misconduct, the prepon-
derance  of  the  evidence  should  support  a  finding  of  misconduct.    The  applicant’s  conviction 
showed that this criterion was met.  CGPC concluded that the applicant’s discharge was therefore 
“correct by policy”; that there had been “no procedural errors”; and that the applicant’s discharge 
on January 28, 2009, would stand. 

 
On January 28, 2009, the applicant was honorably discharged under Article 12.B.18. of 
the Personnel Manual.  The separation code on his DD 214 is JKA, the reenlistment code is RE-4 
(ineligible), and the narrative reason for separation is “Pattern of Misconduct.”   
 

VIEWS OF THE COAST GUARD 

 

On August 19, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion and recommended that the Board grant partial relief in this case.  In so doing, he 
adopted the findings and analysis provided in a memorandum prepared by the Personnel Service 
Center (PSC). 

 
The PSC stated that the applicant received all due process under Article 12.B.18. of the 
Personnel Manual prior to his discharge.  The PSC stated that although Article 12.B.18.b.3. of 
the Personnel Manual authorizes discharges when members commit serious offenses, the Sepa-
ration Program Designator (SPD) Handbook does not contain an exactly equivalent SPD code.  
Therefore, in most such cases, the Coast Guard uses separation code JKA for a “Pattern of Mis-
conduct.”  However, the PSC stated that the applicant’s assertion that his SPD code is inaccurate 
and incorrect is true.  The PSC stated that the applicant should have received SPD code JKB, 
which denoted an involuntary discharge due to conviction by civilian authorities, and “Miscon-
                                                 
2  The  maximum  allowed  punishment  for  involuntary  manslaughter  under  the  UCMJ  is  a  dishonorable  discharge, 
forfeiture of all pay and allowances, and confinement for ten years. 

duct,”  rather  than  “Pattern  of  Misconduct,”  as  his  narrative  reason  for  separation.    The  PSC 
argued, however, that the applicant’s RE-4 code is correct and should not be changed.  The PSC 
stated that the Coast Guard should issue a DD 215 reflecting the recommended corrections. 
 

RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  September  1,  2009,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 

 
 
Guard and invited him to respond within 30 days.  No response was received. 
 

APPLICABLE REGULATIONS 

Article 12.B.18.b. of the Personnel Manual states that Commander, CGPC may direct the 

discharge of a member for misconduct in any of these cases: 

 

 

 
1.  Civilian  or  Foreign  Conviction.  Conviction  by  foreign  or  domestic  civil  authorities  or  action 
taken tantamount to a finding of guilty, e.g., adjudication withheld; deferred prosecution; entry in 
adult/juvenile pretrial intervention programs, or any similar disposition of charges which includes 
imposition  of  fines,  probation,  community  service,  etc.,  of  any  offense  which  could  warrant  a 
punitive discharge if prosecuted under the Uniform Code of Military Justice (UCMJ). Whether a 
civilian offense could warrant a punitive discharge shall be determined by examining the maximum 
authorized punishment for the same or the most closely related offense under the UCMJ and the 
Manual for Courts-Martial (including Rule for Courts-Martial 1003(d)). A member subject to dis-
charge because of conviction by civil court may be processed for discharge even though an appeal 
of that conviction has been filed or intent to do so has been stated. 
 
2. Pattern of Misconduct. Members may be separated when they have: 
   a. two or more non-judicial punishments, courts-martial, or civilian convictions or a combination 
thereof within a 2-year period; 
   b.  three  or  more  unauthorized  absences,  each  is  at  least  three  or  more  days,  within  a  2-year 
period; 
   c. six or more unauthorized absences and the total amount is at least six days, within a 2-year 
period; 
   d. a pattern of failure to contribute adequate support to dependents (see Art. 8.M); 
   e. a pattern of failure to pay just debts; 
   f. a pattern of shirking. 
 
3. Commission of a Serious Offense. Commission of a serious offense does not require adjudica-
tion by non-judicial or judicial proceedings. An acquittal or finding of not guilty at a judicial pro-
ceeding  or  not  holding non-judicial punishment proceeding does not prohibit proceedings under 
this  provision.  However,  the  offense  must  be  established  by  a  preponderance  of  the  evidence. 
Police reports, CGIS reports of investigation, etc. may be used to make the determination that a 
member committed a serious offense. 
   a.  Members  may  be  separated  based  on  commission  of  a  serious  military  or  civilian  offense 
when: 
      (1) The specific circumstances of the offense warrant separation; and 
      (2) The maximum penalty for the offense or closely related offense under the UCMJ and Man-
ual  for  Courts-Martial  includes  a  punitive  discharge.  The  escalator  clause  of  Rule  for  Courts-
Martial 103(d) shall not be used in making this determination. 

Article 12.B.18.e. states that when initiating the discharge of a member with fewer than 
eight years of military service for misconduct, a commanding officer must inform the member in 
writing of the reason for the proposed discharge; afford the member an opportunity to submit a 

written statement; and, if a general discharge is contemplated, afford the member an opportunity 
to consult an attorney. 

 
Under the SPD Handbook, the following separation codes, reenlistment codes, and narra-

tive reasons for separation could apply to the applicant’s separation: 
 

Narrative Reason for 
Separation 

SPD 
RE 
Code 
Codes 
JKA  Pattern of Misconduct  RE-4 

JKB  Misconduct 

JKQ  Misconduct 

RE-4 

RE-4 

 
Explanation of SPD Code 
Involuntary discharge by directive resulting from a 
pattern of misconduct of a discreditable nature with 
civil or military authorities 
Involuntary discharge by directive when a member is 
convicted by civilian authorities 
Involuntary discharge by directive when a member 
has committed a serious military or civilian offense 

 
 

1. 

 
2. 

 
3. 

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 submission, and applicable law: 
 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

The application was timely. 

The  applicant  alleged  that  he  was  erroneously  and  unjustly  discharged  for  an 
alleged pattern of misconduct without due process.  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 applicant bears the burden of proving by a preponderance of the 
evidence that the disputed information is erroneous or unjust.3  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.”4  

The record shows that after the applicant was convicted of negligent homicide and 
drag racing on July 1, 2008, he was notified of the reason for his proposed discharge under Arti-
cle 12.B.18.b.1. of the Personnel Manual and afforded an opportunity to consult counsel and to 
submit  a  statement  on  his  own  behalf.    The  CO  submitted  the  applicant’s  statement  and  the 
attachments with his recommendation for discharge.  Therefore, the preponderance of the evi-

                                                 
3 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)). 
4 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
 

dence shows that the applicant received all process due under Article 12.B.18.e. of the Personnel 
Manual. 
 
4. 

Under  Article  12.B.18.b.1.  of  the  Personnel  Manual,  Commander,  CGPC  may 
order the separation of a member for misconduct if the member is convicted in a civilian court of 
an  offense  that  under  the  UCMJ  could  result  in  a  punitive  discharge.    The  regulation  further 
states that “[w]hether a civilian offense could warrant a punitive discharge shall be determined by 
examining the maximum authorized punishment for the same or the most closely related offense 
under the UCMJ and the Manual for Courts-Martial.”  The applicant was convicted of negligent 
homicide and drag racing.  Under the UCMJ, the most closely related offense is negligent homi-
cide under Article 134.5  The maximum punishment for this offense includes a punitive, dishon-
orable discharge.6  Therefore, the Board finds that the applicant’s discharge was authorized, and 
he is not entitled to have his discharge voided or to be reinstated on active duty, as he requested.  
The Board notes that the applicant alleged that the accident could have happened to anyone, as if 
the  accident  was  not  attributable  to  his  negligent  driving.    However,  he  submitted  nothing  to 
support this allegation. 

The documentation of the applicant’s discharge on his DD 214 appears to be erro-
neous, however, because the narrative reason in block 28 cites a “Pattern of Misconduct,” as if 
the  applicant  had  been  discharged  under  Article  12.B.18.b.2.  rather  than  Article  12.B.18.b.1.  
Article 12.B.18.b.2. does not apply to the applicant’s case because there was only one incident of 
misconduct documented his military record (assuming the homicide and drag racing occurred in 
a single incident). 

 
5. 

 
6. 

The  SPD  Handbook  provides  a  separation  code  for  a  conviction  by  civilian 
authorities  (JKB)  and  another  for  committing  a  serious  offense  (JKQ),  either  of  which  could 
apply to the applicant’s case under Articles 12.B.18.b.1. and 12.B.18.b.3. of the Personnel Man-
ual.  Because the applicant was convicted by a civilian authority and because his CO cited Article 
12.B.18.b.1. in notifying the applicant of his pending discharge and in recommending the dis-
charge to CGPC, the Board agrees with the PSC that his discharge should have been documented 
on his DD 214 with the JKB separation code and “Misconduct” as the narrative reason for sepa-
ration.   
 
7. 

The RE-4 is the only reenlistment code authorized for a member discharged due to 
misconduct, and the applicant has not shown that his RE-4 is erroneous or unjust given his con-
victions. 
                                                 
5 MANUAL FOR COURTS-MARTIAL UNITED STATES, part IV-128 (2008).  The Board notes that in the advisory 
opinion,  the  PSC  compared  the  applicant’s  offenses  to  involuntary  manslaughter  under  Article  119.    Under  the 
UCMJ, the difference between negligent homicide and involuntary manslaughter is whether the homicide resulted 
from  “simple  negligence”—an  absence  of  reasonable  due  care—or  “culpable  negligence”—a  negligent  act  which 
might foreseeably result in the death of another person even if death is not a probable consequence of the act.  Id. at 
parts IV-129 and IV-65.  Although the police report states that the applicant was exceeding the speed limit at the 
time of the homicide, and the applicant was also convicted of drag racing, it is not perfectly clear in the record before 
the Board whether the homicide occurred during a drag race. 
6  Id.  at  parts  IV-66  and  IV-129  (stating  that  the  maximum  punishment  for  negligent  homicide  is  a  dishonorable 
discharge, forfeiture of all pay and allowances, and confinement for three years, while the maximum punishment for 
involuntary  manslaughter  is  a  dishonorable  discharge,  forfeiture  of  all  pay  and  allowances,  and  confinement  for 
fifteen years). 

 
8. 

 

Accordingly, partial relief should be granted by correcting the applicant’s DD 214 
to show that he was discharged with a JKB separation code and “Misconduct” as the narrative 
reason for separation. 

 [ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 

ORDER 

 

 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 
military record is granted in part.  His DD 214 shall be corrected to show separation code JKB in 
block 26 and “Misconduct” in block 28. 

 
 

 
 

 
 

 

 
 Nancy L. Friedman 

 

 

 
 Patrick B. Kernan 

 

 

   
 George A. Weller 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
All other requested relief is denied.