DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-129 
 
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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 April  22,  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  May  13,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
The applicant, who received a discharge under other than honorable (OTH) conditions on 
January 29, 1992, asked the Board to correct his record by upgrading his discharge to honorable.   
 

PROCEDURAL HISTORY 

 
 
On April 9, 1987, the applicant was convicted by general court-martial (GCM) of various 
offenses he had committed in November 1986.  After his sentence was set aside on appeal, the 
applicant requested and received an OTH discharge on January 29, 1992, in lieu of a rehearing 
on the sentence.  On December 19, 2001, the applicant timely applied to the Coast Guard’s Dis-
charge Review Board (DRB) seeking an upgraded discharge and reenlistment code.  His applica-
tion was denied.  On December 12, 2006, the applicant timely requested reconsideration from the 
DRB.  His request was denied on February 26, 2007. 
 

SUMMARY OF THE RECORD 

 
 
On  March  3,  1975,  the  applicant  enlisted  on  active  duty  in  the  Coast  Guard.    He  had 
previously served honorably on active duty in the Marine Corps for four years from November 
30, 1970, to November 29, 1974.  The applicant was honorably discharge and reenlisted in the 
Coast Guard in 1981, and his Coast Guard record contains no evidence of disciplinary problems 
until 1986. 

 
 
On November 3, 1986, the applicant, while on watch as the Officer of the Day, broke into 
his  unit’s  sickbay  and  the  freezer  where  the  urine  specimens  from  a  recent  random  urinalysis 
were stored.  He wore gloves and brought locks to replace the ones he was cutting off.  He stole 
the urinalysis records and specimens to try to prevent the detection of his drug use.  However, 
after an investigation began, the applicant confessed to having stolen the specimens.  As a result 
of his confession, he was charged with using marijuana on October 18, 1986, contrary to Article 
112a of the Uniform Code of Military Justice (UCMJ); housebreaking, contrary to Article 130, 
UCMJ;1  destroying  military  property,  contrary  to  Article  108,  UCMJ;  and  stealing  urinalysis 
documents and urine specimens from a freezer, contrary to Article 121, UCMJ. 
 
 
On January 2, 1987, the applicant’s enlistment ended.  He was retained beyond the expi-
ration of his enlistment because of a pending court-martial.  The applicant signed a consent to his 
retention. 
 
 
On February 6, 1987, the applicant was arrested by local police and charged with bur-
glary of a nonresidential building.  Upon his release by civil authorities, the Coast Guard put him 
in pretrial confinement.   
 

On February 17, 1987, the Commandant ordered that the applicant’s pay be stopped.  The 
Commandant advised the applicant’s command that under sections 2-H-5.b. and 2-H-5.i. of the 
Pay  Manual,  COMDTINST  M7220.29,  the  applicant’s  “pay  and  allowances  continue  past  the 
normal date of separation since [he] has been retained in a full duty status.  However, upon con-
finement, pay and allowances terminate since [he] is no longer in a full duty status.”  The com-
mand  responded  the  next  day,  asking  for  reconsideration  of  the  order  because  of  the  severe 
financial hardship it would cause.  The Command responded as follows: 

 
1.    [Your  inquiry]  has  been  reviewed  by  both  this  office  and  that  of  the  Chief  Counsel.    [The 
applicant’s] enlistment expired 3 JAN 1987.  Since [he] is retained awaiting trial by court-martial, 
his enlistment contract cannot be extended not can he reenlist.  [He] was initially retained past the 
expiration of enlistment in a fully duty status.  As such, entitlement to P&A [pay and allowances] 
continued.  Upon confinement, [he] is no longer in a full duty status and entitlement to P&A is 
precluded. 
 
2.  It is certainly  not our intent to cause a financial  hardship or deprive any [member] of P&A 
entitlements.  However, P&A entitlements are provided for by law and statute and are not subject 
to administrative discretion.  There are no provisions of law which authorize payment of P&A for 
a [member] beyond expiration of enlistment and in confinement. 

 
 
On April 9, 1987, the applicant pled guilty to the four charges at a GCM.  During the sen-
tencing phase before a board of officers, the trial counsel elicited testimony from the applicant’s 
commanding officer, who stated that the applicant had no rehabilitative potential because he had 
abused the trust placed in him as the Officer of the Day.  The trial counsel also elicited testi-
mony, over the objections of the defense counsel, LCDR D, to the fact that the applicant was 
addicted to drugs and to the fact that the applicant’s pay had been stopped when he was place in 
pretrial confinement because of the burglary on February 6, 1987.  The applicant was sentenced 
                                                 
1 Under the Article 130 of the UCMJ, “housebreaking” is defined as “unlawfully enter[ing] the building or structure 
of another with intent to commit a criminal offense therein.”  10 U.S.C. § 930. 

On September 4, 1987, the convening authority approved the sentence of the GCM. 

On May 30, 1988, the applicant was paroled from confinement in the Navy brig in Cor-

 
 
pus Christi for good behavior.   
  
 
 
On  May  3,  1989,  the  Texas  state  court  convicted  the  applicant  of  the  burglary  he  had 
committed on February 6, 1987, because he had violated his probation.  The order states that the 
court adjudged him guilty and terminated his probation without further punishment. 
 

to a bad conduct discharge, confinement for 2.5 years, and reduction from pay grade E-6 to E-1.  
He began serving his sentence the same day.2 
 
 
On April 20, 1987, the applicant pled guilty in a Texas state court to the burglary he had 
committed on February 6, 1987.  Pursuant to a plea agreement, the adjudication was delayed and 
he was fined and placed on probation.  
 

On August 7, 1989, he was awarded a “full term release” from his military parole and 

placed in involuntary appellate leave status. 
 
The Applicant’s Appeal 
 
 
On behalf of the applicant, LCDR B, his appellate counsel, had filed an appeal with the 
Coast Guard Court of Military Review (CMR) based on five allegations of error.  On September 
30, 1989, the CMR affirmed the GCM’s finding of guilty but set aside the sentence based on two 
of the alleged errors.3  First, the CMR found that it was error for the trial judge to allow the 
applicant’s CO to testify about his potential for rehabilitation.  The CMR noted that under United 
States v. Gunter, 29 M.J. 140 (CMA, 1989), and United States v. Ohrt, 28 M.J. 301 (CMA 1989), 
“notwithstanding  the  apparent  authority  of  RCM  1001(b)(5),  the  government  may  not  call  an 
accused’s  commanding  officer  at  the  sentencing  stage  of  trial  to  testify  that  an  accused  lacks 
rehabilitative potential, unless it is in rebuttal to matters presented by the defense.  Furthermore, 
such opinion testimony must always have a proper foundation based on accused’s character and 
potential in order to be admissible.”4  
 
 
Second, the CMR found that the trial judge had improperly allowed the trial counsel, over 
the objection of the defense counsel, LCDR D, to ask the applicant whether he had been addicted 
to speed when he was ordered into pre-trial confinement.  The CMR noted that the judge later 
instructed  the  court  members  to  disregard  that  testimony,  which  might  have  been  adequate  to 
expunge any prejudicial effect of the testimony had other uncharged misconduct not been erro-
neously elicited as well.  The CMR found that after the applicant’s wife mentioned the hardship 
caused but the stoppage of the applicant’s pay, the trial judge should not have allowed to trial 
counsel to elicit testimony about the applicant’s arrest for burglary on February 6, 1987, when, as 
LCDR D had argued, the pay stoppage could have been explained simply by noting the provi-
sions of the Pay Manual that call “for termination of pay when confinement is coupled with expi-
                                                 
2 United States v. Xxxxx, 25 M.J. 623-24 (CGCMR, 1987). 
3 United States v. Xxxxx, 29 M.J. 667 (CGCMR, 1989). 
4 Id. at 668. 

ration  of  enlistment.”5    The  CMR  found  that  “[t]he  clear  import  of  the  Deputy  Group  Com-
mander’s testimony was that appellant had committed misconduct separate and apart from the 
charged offenses which was serious enough to warrant confinement.  Moreover, this uncharged 
misconduct  may  have  led  the  court  members  to  believe  that  the  severe  action  of  termination 
Coast Guard pay was related in some way to the appellant’s acts.”6  The CMR found that the 
unfair prejudicial effect of this testimony far exceeded any probative value and that “the cumula-
tive effect of these errors together with the improper opinion testimony of the Commanding Offi-
cer compel a sentence rehearing rather than a sentence reassessment by this Court.”7  Therefore, 
the CMR returned the case for a sentence rehearing and ordered the Coast Guard to restore to the 
applicant “[a]ll rights, privileges and property of which the accused ahs been deprived by virtue 
of the sentence we have set aside … pending further action in this case.”  In a footnote to the 
decision, the CMR wrote the following: 
 

As  a  separate  matter,  we  are  concerned  by  possible  issues  inherent  in  the  accused’s  “no-pay” 
status which have not been raised before this Court.  For example, does confinement without pay 
before conviction of any offense amount to unlawful punishment before trial, in violation of Arti-
cle 13, Uniform Code of Military Justice, 10 U.S.C. § 813?  If deemed punishment, may it possi-
bly be characterized as “cruel and unusual” punishment under the circumstances of this case, con-
sidering the disintegrating impact it has had on the accused’s family, in contravention of Article 
55, Uniform Code of Military Justice, 10 U.S.C. § 855?  Moreover, does involuntary retention on 
active duty without pay, somehow divest a court of personal jurisdiction over an accused?  These 
matters, not having been raised by counsel, while of concern, need not be addressed in arriving at 
an appropriate result since our action returning the record for a rehearing on the sentence affords 
full opportunity for development of these matters.  The lawfulness of pretrial confinement without 
pay may be litigated at the trial level if deemed appropriate by appellant as bearing on the sen-
tence.  Moreover, if the court lacked jurisdiction based on these facts, that, too, can be litigated at 
the  sentence  rehearing  since  jurisdictional  issues  can  always  be  raised  at  any  stage  of  the  pro-
ceedings.    Finally,  aside  from  Articles  13  and  55,  Uniform  Code  of  Military  Justice,  the  basic 
question whether it was a legally correct decision to terminate this accused’s pay, upon the impo-
sition  of  pretrial  restraint  at  a  time  when  the  accused  may  have  been  on  a  lawfully  extended 
enlistment, can also be addressed at any rehearing.  In so doing, the difference between the facts of 
this case and those in which an accused’s enlistment expires while serving adjudged confinement 
can be fully considered. 

On January 31, 1990, the CMR reaffirmed its decision after the Government requested 

 
 
reconsideration and again a rehearing on the sentence. 
 
 
On August 22, 1990, the applicant was arrested in Palm Beach, FL, for burglary, grand 
theft, and check fraud.  On November 1, 1990, the applicant pled guilty to the charges and was 
placed on probation for 2.5 years, the terms of which required him to successfully complete sub-
stance abuse rehabilitation treatment. 
 
 
On March 27, 1991, the U.S. Court of Military Appeals affirmed the CMR’s decisions 
and order for a rehearing on the sentence.  The Coast Guard scheduled a rehearing on the sen-
tence. 
 

                                                 
5 Id. at 670. 
6 Id. at 669. 
7 Id. at 670. 

Applicant’s Request for an OTH Discharge 
 
 
On November 8, 1991, after consulting counsel, the applicant submitted a request for an 
OTH discharge “for the good of the Service in lieu of a court-martial sentence rehearing under 
circumstances which could lead to a bad conduct discharge.”  The applicant acknowledged hav-
ing consulted counsel, who “fully advised [him] of the implications of such a request,” and being 
“completely satisfied with the counsel [he had] received.”  He also acknowledged that an OTH 
discharge would deprive him of virtually all veterans’ benefits based on his final enlistment and 
that he could “expect to encounter substantial prejudice in civilian life.”  In addition, the request 
states that it was submitted “voluntarily  free from any duress or promises of  any kind.”  The 
applicant was informed of his right to submit a separate statement and opted not to do so. 
 
 
Commandant and strongly recommended approval of the request as follows: 
 

On December 13, 1991, the District Commander forwarded the applicant’s request to the 

2.  [The applicant’s] problems go back more than five years.  The crime that begins [his] sad story 
took place on 19 October 1986.  That night, [he] argued with his wife.  He left home and went to 
the City Limits bar in Corpus Christi, Texas.  There he saw his brother-in-law.  As the bar was 
closing, the two men smoked some marijuana.  Four days later, [the applicant] provided a urine 
sample for the Coast Guard’s drug testing program.  He had every expectation that the results of 
his urinalysis would reveal the unlawful use of marijuana. 
 
 
[The  applicant]  took  action  to  avoid  the  Coast  Guard’s  detection  of  his  crime  by 
discrediting the urinalysis program.  During the early morning hours of 3 November 1986, he was 
on duty as the watch captain at Coast Guard Air Station Corpus Christi, Texas.  Watch captain is a 
position of trust and responsibility within the engineering section of an air station.  In this position, 
[he] was in charge of the station’s security and all maintenance performed by the duty station.  At 
about 0200 on 3 November 1986, [the applicant] used his duty keys to enter the air station’s sick-
bay.  Using flight gloves and a set of bolt cutters from the surface engineering department, [he] cut 
the locks off a freezer in sickbay.  He removed a package of urine samples, knowing one of the 
samples was his.  [He] then replaced the old locks with new ones he had purchased earlier at a 
local hardware store.  He opened sickbays’ filing cabinet and removed the urinalysis logs, one of 
which contained his records. 
 
 
[The applicant] removed this evidence  from  sickbay and took it to the avionics supply 
shop.  There he opened several urine bottles, placing both them and the logs in a cardboard box.  
He hoped no one would find them.  [He] returned the bolt cutters to surface engineering.  On his 
way home the next day, [he] threw the locks he had cut off sickbay’s freezer out the window of his 
truck somewhere along Laguna Shores in Corpus Christi, Texas. 
 
 
The  next  day,  on  4  November  1986,  [a  first  class  avionics  technician]  found  the  urine 
samples and logs.  Coast Guard investigations was called into the case on 5 November 1986 and, 
on 7 November 1986, the accused confessed his crimes to [an investigator]. 
 
3.  Charges were preferred against [the applicant] and his case was referred to a General Court-
Martial.  See the charge sheet in enclosure (1).  While [he] was awaiting trial, he was arrested by 
civilian  authorities  in  Corpus  Christi  for  breaking  into  a  school  building.    The  conviction  that 
resulted from this offense is included as enclosure (2).  [The applicant] was returned to the Coast 
Guard  and  placed  in  pretrial confinement.    At  his  Coast  Guard  trial,  [he]  was  found  guilty  and 
sentenced to a bad conduct discharge, two and one-half years in confinement, and reduction to the 
lowest enlisted pay grade.  See the attached promulgating order, enclosure (3).  [He] served about 
a year in confinement and, on 30 May 1988, was released on parole. 
 

4.  After several hearings before the Coast Guard Court of Military Review and the Court of Mili-
tary Appeals, [the applicant’s] convictions were affirmed but his sentence was disapproved.  See 
the attached appellate court opinions, enclosures (4) through (6).  His case was remanded to me 
for a rehearing on the sentence.  I ordered the rehearing and it  was originally scheduled for 10 
December  1991.    When  [the  applicant]  submitted  this  request  for  discharge,  the  military  judge 
continued the rehearing until 31 March 1992. 
 
5.    After  his  release  from  confinement,  but  while  his  court-martial  convictions  were  still  being 
appealed, [the applicant] moved to Florida.  There he was caught burglarizing the homes of civil-
ians.  He pled guilty to burglary, grand theft, and obtaining property for worthless checks, and was 
sentenced.    See  enclosures  (7)  through  (9).   In  addition  to  serving  time  in  prison  for  his  court-
martial convictions, I understand [he] has served the sentence from  his Florida convictions, has 
completed a program for people addicted to cocaine, and is currently living in a half-way house 
while holding a job at a shoe repair stand. 
 
6.  [The applicant’s] request for a discharge under other than honorable conditions indicates to me 
that he’d like to leave this chapter of his life behind.  After at least four convictions for burglary 
and theft related charges, lengthy stays in prison, and over five years of litigation, I imagine [he] is 
not eager to open any old wounds and start the appeals process anew.  I agree with that view.  The 
Coast Guard has made its point in this case and [the applicant] has, in large measure, served his 
original sentence.  The only people who would ever know or care about the results of a sentencing 
rehearing are [the applicant] and the lawyers involved on either side. 
 
7.  For all these reasons, I believe an other than honorable discharge is the right way to end this 
case.  I therefore forward [his] request with my strongest recommendation that you approve it.  I 
shall hold any further military justice action in abeyance while this request is pending. 

 
 
On January 3, 1992, the Commandant ordered the applicant’s expedited OTH discharge 
within 30 days for the good of the Service in lieu of trial by court-martial under Article 12-B-12 
of the Personnel Manual with separation code KFS. 
 

On January 17, 1992, the District Commander, as the OECGMJ, issued an order cancel-
ing the rehearing on sentencing, affirming the findings of the applicant’s GCM, but imposing no 
punishment. 
 
 
On January 29, 1992, the applicant received the OTH discharge.  His discharge form DD 
214 shows that he was discharge “under other than honorable conditions” and “for the good of 
the service.”     
 
 
On May 11, 1992, the CMR issued a decision in its final review of the case and addressed 
four  allegations  of  error  by  the  applicant’s  counsel.    The  first  three  allegations  concerned  the 
validity of the trial judge’s and appellate judges’ appointments and argued that the conviction 
had to be overturned because their appointments were not valid.  The CMR rejected these three 
allegations  and  stated  that  the  findings  of  guilty  had  become  final  by  operation  of  law.    The 
applicant’s fourth allegation was that the Coast Guard had failed to restore to him “all rights, 
privileges and property of which he [had] been deprived by virtue of the sentence [the CMR] set 
aside.”  The CMR found that the Coast Guard had complied with this order because no bad con-
duct discharge had been imposed and the applicant’s rating had not been reduced to E-1 since he 
was discharged as an E-6.  The CMR concluded that “nothing from Applicant’s sentence remains 
to be restored.”  The CMR noted that the applicant had requested back pay but stated that the 
stoppage of the applicant’s pay did not result from his GCM sentence and so setting aside the 

sentence did not cause the Coast Guard to owe him back pay.  The CMR noted that the appli-
cant’s  back  pay  could  have  been  litigated  at  a  sentence  rehearing  had  the  applicant  chosen  a 
rehearing instead of requesting an OTH discharge and that his pay could still be litigated in the 
Claims Court.  
 
 
On  October  15,  1992,  the  applicant’s  attorney  acknowledged  that  the  applicant  had 
received a check for $68,806.76 and intended to cash it “without waiving any of his rights to any 
additional back pay and benefits that may have been overlooked or miscalculated in his particu-
lar situation.  He also specifically reserves his right to claim an appropriate military pension and 
related benefits for his twenty-one (21) plus good years of service in the Coast Guard and Marine 
Corps. … The purpose of this letter is to apply for [the applicant’s] military retirement benefits 
based on his good years of service. 
 
 
On December 10, 1992, the Chief of the Enlisted Career Branch responded to the appli-
cant’s request for retirement pay stating that although the applicant had 20 years of service cred-
itable  for  retirement  purposes,  he  requested  and  accepted  a  discharge  in  lieu  of  further  court-
martial processing.  He stated that because the applicant’s discharge terminated his status as an 
enlisted member, he was no longer entitled to apply for retirement. 
 
 
On December 19, 2001, the applicant applied to the DRB for an upgraded discharge and 
reenlistment code.  On October 10, 2002, the DRB informed the applicant that his application for 
an upgraded discharge and reenlistment code had been denied and that the OTH and RE-4 would 
“stand as issued.”  The DRB informed the applicant that he could apply to the BCMR and pro-
vided him with the address of the BCMR and a DD 149 BCMR application form.   
 

In its report, the DRB summarized the evidence and the testimony elicited at a hearing.  
The applicant told the DRB that there was no pretrial agreement because he “[j]ust wanted to 
throw [him]self on the mercy of the  court.”  While he was in the brig,  he received substance 
abuse treatment.  Later, he requested the OTH even though a resentencing hearing and had been 
scheduled  and  his  attorney  explained  the  prejudice  he  would  face  with  an  OTH  because  he 
“didn’t think it would be easy to do another court martial [and] didn’t understand the prejudice.”  
The summary indicates that the applicant had received $68,000 in back pay in 1992.   
 
 
The DRB voted 4 to 1 to deny relief, finding that the discharge was proper and equitable.  
One member thought that the OTH was inequitable because he believed that the applicant had 
“20 years of service with honor,” which “outweighs his offenses” and because he knew “lots of 
people that have done worse.”  The Commandant approved the DRB’s recommendation against 
relief. 
 
 
On December 12, 2006, the applicant reapplied to the DRB.  On February 26, 2007, the 
DRB informed the applicant’s attorney that his case had already been reviewed and denied and 
that the decision had been mailed to the applicant with a DD 149 and information about applying 
to the BCMR on October 10, 2002.  The DRB’s letter included the statement, “This letter consti-
tutes exhaustion of administrative remedies internal to the Coast Guard.”   
 

On April 22, 2008, the Governor of Florida restored the applicant’s civil rights, except 
the right to possess a firearm, for all felony convictions in Florida state courts and restored his 
civil rights within the State of Florida, except the right to possess a firearm, for all felony con-
victions in any other state, federal, or military court. 
 

APPLICANT’S ALLEGATIONS 

 
The applicant admitted that he made mistakes while serving in the Coast Guard.  How-
 
ever,  he  alleged,  his  discharge  should  be  upgraded  to  honorable  because  he  was  treated  very 
unfairly and suffered hardships as a result of the Coast Guard’s many errors in handling his case.   
 

First, the applicant alleged that his assigned military attorney, LCDR D, was ineffective.  
He complained that LCDR D advised him to plead guilty and “did not assist [him] in trying to 
negotiate a pretrial agreement that would have allowed me obtain substance abuse treatment and 
stay in the Coast Guard.”  The applicant alleged that if he had been offered treatment  for his 
cocaine  addiction  as  part  of  his  plea  agreement,  he  could  have  continued  his  military  career.  
LCDR D also did not challenge the fact that only officers served on his court-martial board, even 
though he wanted enlisted members on it.  LCDR D also did not object to his CO testifying that 
he had no rehabilitative potential. 
 
 
Second, the applicant  alleged that his sentence  was too severe in light  of his “over 20 
years of spotless service” and in comparison with the sentences of other members who commit-
ted similar offenses.  Moreover, he served almost 18 months in confinement even though his sen-
tence was set aside because the CMR determined that prejudicial evidence had been improperly 
admitted at trial and thus exacerbated his sentence.  He alleged that the CO gave him an overly 
harsh sentence because he wanted to make an example of him. 
 
 
Third, the applicant alleged that the Coast Guard illegally stopped his pay during his pre-
trial confinement, which was cruel and unusual punishment in violation of Articles 13 and 55 of 
the UCMJ and the Eighth Amendment of the Constitution.  He alleged that the loss of pay caused 
his marriage to disintegrate, and he had to remove his son from the psychiatric facility where he 
was  being  treated.    In  addition,  the  loss  of  pay  prevented  him  from  hiring  civilian  counsel.  
Moreover, even though the courts had repeatedly ordered the Coast Guard to restore to him all 
rights,  privileges,  and  property  of  which  he  had  been  deprived  by  virtue  of  the  sentence,  the 
Coast Guard required him to file a claim for his back pay and he did not receive it until July 9, 
1992.  
 

Fourth,  the  applicant  alleged  that  when  the  case  was  returned  for  a  rehearing,  he  was 
coerced into requesting an OTH even though he wanted an honorable discharge.  He alleged that 
he was told that the District Commander would not entertain any other request and that he was 
threatened with a BCD and an even longer sentence—i.e., more time in confinement—if he did 
not request the OTH.  The applicant alleged that at the time, he “had no idea how this type of dis-
charge would handicap” him in civilian life.   

 
Fifth, the applicant alleged that in considering his request for an OTH, the District Com-
mander improperly took into consideration his civil convictions.  He argued that consideration of 

his civil convictions was improper because the courts had said that it was improper for such evi-
dence  to  be  considered  in  the  sentencing  phase  of  his  GCM.    In  addition,  he  argued  that  in 
approving his request for an OTH and not giving him a better discharge, the District Commander 
was clearly confused about the circumstances of his case because he stated in his endorsement to 
the  applicant’s  request  that  the  applicant  had  broken  into  “homes”  whereas  the  applicant  had 
been convicted of breaking into only one residence.  “There is a big difference from claiming 
[he] burglarized multiple homes when in fact it was a single burglary.”  In addition, the District 
Commander stated that the applicant had served about a year of the original sentence in confine-
ment, whereas in fact he had been confined almost 18 months. 
 
 
Sixth, the applicant alleged that his discharge should be upgraded because he has greatly 
reformed in the past 18 years, has not committed any more crimes, and has become a good citi-
zen.  He pointed out that the Governor of Florida has restored his civil rights in that state and that 
the civil convictions at issue were considered by the District Commander in the determination of 
what type of discharge he should receive.  The applicant further stated that his offenses in 1986, 
1987, and 1990 were caused by his addiction to drugs, but he underwent rehabilitation in 1992 
and has been clean and sober ever since.  He stated that he is a hard worker but is often rejected 
by potential employers after he explains his military discharge. He has worked as a dispatcher for 
a film express company, a shoe repairman, and a painting contract estimator and has been the 
manager of a storage facility for more than ten years. 
 
 
In support of his allegations, the applicant submitted documents from his military record 
and court cases, which are included in the summary of the record below and statements in sup-
port of his application: 
 

•  On  October  31,  1995,  a  Florida  parole  officer  wrote  to  the  applicant’s  attorney  that 
according  to  his  memory,  the  applicant  had  not  violated  the  terms  of  his  parole  while 
being supervised by the parole officer.  

 

 

 

 

•  On  February  2,  1996,  the  applicant’s  son  wrote  that  after  his  father  was  transferred  to 
Corpus Christi, he experienced stress because of the son’s behavioral problems and his 
wife’s discontent and turned to drugs.  However, after his father’s “rehabilitating incar-
ceration,” their relationship slowly improved.  The son wrote that his father had become 
an exceptional person who performs volunteer work for charities. 

•  On February 12, 1996, the pastor of the applicant’s church wrote that the applicant had 
attained a remarkable achievement by freeing himself from and staying free of drugs and 
alcohol.  The applicant was an effective counselor for people entering the church’s drug 
and alcohol rehabilitation program because he knew what it was like “to lose his way, his 
job, and his family” because of drug abuse. 

•  On February 12, 1996, a member of the applicant’s support group wrote that he attended 
their biweekly meetings “without fail,” performed community service, worked hard, and 
was a caring friend. 

•  On February 21, 1996, another member of the applicant’s support group wrote that in the 
five years he had known him, the applicant had made great strides, taken on responsibili-
ties in helping others, and become a good member of the community. 

•  On March 1, 1996, a director of operations for a property management company stated 
that the applicant had worked for the company as a business associate for four years and 
had  proved  to  be  an  honest  and  reliable  businessman  who  had  earned  her  respect  and 
admiration. 

•  On November 28, 2006, Ms. D stated that the applicant was a very kind man who had 
visited her during her recovery from a back operation even though he had not previously 
met her and  who had become  a dear friend who was very honest and  honorable.  She 
stated that he deserves an honorable discharge. 

•  On November 29, 2006, the Atlanta area manager of a storage facility company wrote 
that the applicant had worked for her company since July 8, 2004; that he had been pro-
moted from assistant manager of a storage facility to manager; and that he was depend-
able and a hard worker. 

•  On December 1, 2006, Mr. M, a childhood friend of the applicant, wrote that has a com-
mercial  superintendent  for  the  second  largest  contractor  in  Georgia,  he  has  supervised 
hundreds of people over the years and is a good judge of character.  He stated that the 
applicant is a “man of great integrity, dedicated to his family and work, and a good friend 
I know I can count on.” 

•  On December 1, 2006, Mr. N, who has been a friend of the applicant for more than 40 
years, wrote that he greatly respects and admires the applicant, who is a good husband 
and father. 

• 

• 

In an undated letter, Ms. G wrote that the applicant had been a close friend for more than 
two years, that he was conscientious, trustworthy, and very responsible. 

In an undated letter, Mr. J, who has known the applicant for more than 35 years, wrote 
that the applicant was proud to have served in the Marine Corps and the Coast Guard for 
so many years and is deeply sorry for his mistakes. 

•  On December 7, 2006, the applicant’s ex-wife (they divorced in 1991) stated that his dis-
charge should be upgraded to honorable because from 1970 until 1986 his service was 
unblemished.  She stated that he has been clean and sober for many years and is a good 
father and a good citizen. 

•  On December 12, 2008, the director of the Foundation for Peace and Human Dignity in 
Alpharetta, Georgia, wrote that the applicant had worked for the foundation for more than 
three  years,  was  trusted,  and  had  always  been  “extremely  courteous,  professional  and 
helpful.” 

 

 

 

 

 

 

 

 

 

 

VIEWS OF THE COAST GUARD 

 

On June 4, 2009, the Judge Advocate General of the Coast Guard submitted an advisory 

opinion recommending that the Board deny relief in this case. 

 
The JAG noted that the application was not timely filed because the applicant was dis-
charged in 1992, applied to the DRB in 2001, and received a decision from the DRB in October 
2002, which informed him of his right to apply to the BCMR.  The JAG stated that the applicant 
had provided no rationale for his seven-year delay in applying to the BCMR. 

 
The  JAG  alleged  that  on  November  8,  1991,  after  consulting  counsel,  the  applicant 
requested an OTH discharge “to avoid the strong possibility of a punitive discharge at rehear-
ing.”  He further alleged that a “review of the Applicant’s record does not reveal any error or 
injustice with the processing of his discharge.” 

 
The  JAG  alleged  that  the  applicant’s  allegations  of  error  and  injustice  are  meritless.  
Although “he did have a number of years of good service both with the US Marines and the US 
Coast Guard, his decisions in October of 1986 giving rise to his blatant violations of the UCMJ, 
CG policy & procedure as well as state laws in more than one state are inexcusable.”  The JAG 
alleged that “[b]ased on CG standards then and now, the applicant’s record fully supports the 
assigned character of service that he requested.” 

• 

It was improper for the  District Commander to  consider his civil criminal felonies “in 
forcing  him  to  accept  [an  OTH]  discharge”  and  that  he  did  so  only  because  the  Coast 
Guard had not yet paid him so he did not have the money to hire a civilian attorney. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On December 15, 2009, the applicant submitted his response to the JAG’s advisory opin-
ion.  He argued that his application is timely filed and that it is in the interest of justice for the 
Board to provide a full and complete review of the merits of his case because his claims are par-
ticularly  meritorious  and  because  the  restoration  of  his  civil  rights  within  the  State  of  Florida 
occurred in 2008 and constitutes newly discovered evidence that was not known to him in 2002.  
He alleged that the decision that the DRB issued in 2002 did not begin the tolling of the BCMR’s 
three-year statute of limitations because the letter forwarding him that decision did not state that 
by  virtue  of  the  DRB’s  denial  of  his  request,  he  had  exhausted  his  administrative  remedies, 
whereas the reply he received upon applying to the DRB in 2007 states that the “letter constitutes 
exhaustion of administrative remedies internal to the Coast Guard.”  The applicant argued that 
even if the Board finds that his application is not timely filed, the Board should find it in the 
interest of justice to waive the statute of limitations because unlike the plaintiffs in the case of 
Dickson v. Sec’y of Defense, 68 F.3d 1396 (D.C. Cir. 1995), the applicant performed many hon-
orable years of service before his discharge and has been a “law-abiding, hard-working and hon-
est person” both before and after his offenses.   
 

In addition to his arguments regarding the timeliness of his application, the applicant reit-

erated the following allegations: 
 

 

 

 

 

 

 

 

 

 

•  The Coast Guard failed to follow the orders that all of his rights, privileges, and property 

be restored pending further action on his case. 

•  The applicant has been clean and sober for 16 years and, if the Coast Guard had given 
him proper rehabilitation treatment in 1986 and awarded him reasonable punishment, he 
could have continued his Coast Guard career and retired. 

•  His trial counsel was ineffective since he  failed to obtain a plea agreement so that the 

applicant could stay in the Coast Guard after an appropriate reduction in rank. 

•  The  stoppage  of  his  pay  was  both  illegal  and  cruel  and  unusual  punishment  since  it 
deprived his family of any income from him, caused his son to be discharged from a psy-
chiatric facility, and caused his family to disintegrate. 

•  He “performed over twenty (20) years of outstanding military service, four years in the 
Marine Corps and then sixteen years in the Coast Guard,” which “outweighed the sen-
tence he was forced to accept.” 

•  He voluntarily confessed his crime, which might have remained unsolved had he not con-
fessed.  In addition, he pled guilty without a pretrial agreement and served prison time on 
a sentence that was set aside.  He served approximately 18 months in the Navy brig. 

•  When he requested the OTH discharge, he was unaware of the prejudice he would face in 

the civilian world as a result of an OTH discharge. 

•  The restoration of his civil rights within the State of Florida has “completely removed 
any criminal findings against [him] and without the consideration of the criminal find-
ings, a reasonable and prudent officer would not have discharged [him].” 

APPLICABLE LAW 

 

Article  20-F-1.a.  of  the  Personnel  Manual  in  effect  in  1986,8  entitled  “Disposition  of 
 
Drug Abusers,” stated that “[a]ny member involved in a drug incident as defined in 20-A-3 will 
be processed for separation from the Coast Guard.”  A “drug incident” and “drugs” were defined 
in Article 20-A-3 to include the illegal use of marijuana.  Article 12-B-18.b.(4) stated that “[a]ny 
member involved in a drug incident will be separated from the Coast Guard with no higher than 
a general discharge.”  Under Articles 20.C. and 12.B.18. of the Personnel Manual in effect today, 
a member involved in a drug incident is separated with no higher than a general discharge. 
 
 
Article 20-F-1.b. of the manual stated that “[r]egardless of the required discharge action, 
members who commit drug offenses under the Uniform Code of Military Justice are subject to 
disciplinary action as appropriate.  Such action must be completed before discharge processing is 
initiated.” 
                                                 
8 U.S. COAST GUARD, COMDTINST M1000.6, COAST GUARD PERSONNEL MANUAL (Change 27, 1986). 
 

 
 
 

Article 12-B-21, entitled “Discharge for the Good of the Service,” stated the following: 

a.    An  enlisted  member  may  request  a  discharge  under  other  than  honorable  conditions  for  the 
good of the Service in lieu of action under the UCMJ if punishment for alleged misconduct could 
result in a punitive discharge.  A request for a discharge under other than honorable conditions for 
the good of the Service may be submitted by the member at any time after court-martial charges 
have been preferred against him/her. 
 
b.  A request for a discharge under other than honorable conditions for the good of the Service 
does not preclude or suspend disciplinary proceedings in a case.  Whether such proceedings will 
be held in abeyance pending final action on a request for discharge is a matter to be determined by 
the officer exercising general court-martial jurisdiction over the member concerned.  Requests for 
discharge  under other than  honorable conditions for the  good of the Service  shall be forwarded 
through the officer exercising general court-martial jurisdiction for personal review and comment. 
 
c.  A member who indicates a desire to submit a request for a discharge under other than honor-
able  conditions  for  the  good  of  the  Service  will  be  assigned  a  lawyer  counsel.    If  the  member 
elects to have civilian counsel at his/her own expense, the record shall indicate the name, address, 
and qualifications of the civilian counsel. 
 
d.  A member who persists in the desire to request a discharge under other than honorable condi-
tions  in  accordance  with  this  article  after  consultation  with  counsel  shall  personally  sign  the 
following request in proper letter format:  … [The format is the same as that used by the applicant 
in this case.] 
 
e.  The request for discharge shall be forwarded via the chain of command to the Commandant (G-
PE).  The member’s commanding officer shall recommend approval or disapproval of the mem-
ber’s  request  with  appropriate  justification  for  his/her  recommendation,  certify  accuracy  of  the 
court-martial charges, and enclose the following in the forwarding endorsement: … 
 
f.  The reason for discharge shall be for the good of the Service and the member shall not be rec-
ommended for reenlistment.  If the Commandant is of the opinion that, based on the facts of the 
case, the member warrants a more favorable type discharge than discharge under other than hon-
orable conditions, the Commandant may direct issuance of an honorable or general discharge. 

The rules for requesting OTH discharges in effect under Article 12-B-21 today are essen-

 
 
tially the same. 
 

FINDINGS AND CONCLUSIONS 

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

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

1. 
 
2. 

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

Under 10 U.S.C. § 1552(b) and 33 C.F.R. § 52.22, an application to the Board 
must be filed within three years after the applicant discovers, or reasonably should have discov-
ered, the alleged error or injustice.  The applicant clearly knew of his OTH discharge in 1992.  
However, under Ortiz v. Secretary of Defense, 41 F.3d 738, 743 (D.C. Cir. 1994), the Board’s 
three-year statute of limitations did not begin to run until the Discharge Review Board issued its 
decision in 2002, when the DRB sent the applicant a copy of the decision denying his request 

and informing him of his right to apply to the this Board.  Therefore, the Board’s statutory limi-
tations period expired three years thereafter, in 2005. 

The applicant, however, did not apply to the BCMR within that three-year period.  
Instead, he waited until December 2006 and requested reconsideration from the DRB.  The DRB 
has a 15-year statute of limitations,9 and the DRB’s rules for reconsideration10 provide no other 
time limit.  Because the applicant was discharged on January 29, 1992, his request for reconsi-
deration by the DRB, dated December 12, 2006, was timely filed.  The DRB effectively denied 
the applicant’s request for reconsideration by declining to consider it.  The applicant filed his 
first application to this Board within three years of the DRB’s denial of reconsideration.  Thus, 
although Ortiz does not expressly address the timeliness of the application in this case, it appears 
to the Board that the application was timely filed.  In this regard, the Board notes that in Ortiz, 
the  court  held  that  “given  the  remedial  nature  of  the  administrative  scheme  for  correction  of 
erroneous or unjust dismissals and discharges, there is a presumption in favor of having the mer-
its of such claims heard.”11 

 
3. 

 
4. 

 
5. 

The applicant alleged that his OTH discharge should be upgraded to honorable 
because the Coast Guard committed several errors and injustices in handling his misconduct. The 
Board begins its analysis in every case by presuming that the disputed information in the appli-
cant’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 un-
just.12  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.”13 

The  applicant  alleged  that  because  he  had  served  honorably  on  active  duty  for 
more than 15 years in 1986, the Coast Guard should have offered him substance abuse rehabilita-
tion so that he could continue his career in the Coast Guard.  However, Articles 20-F-1.a. and 12-
B-18.b.(4) of the Personnel Manual then in effect required that members who abused drugs be 
processed  for  separation  and  receive  no  better  than  a  general  discharge.14    This  rule  has  not 
changed,15 and it is not unreasonable given the Coast Guard’s major role in drug interdiction.  In 
addition, the record shows that the applicant did receive substance abuse treatment while he was 
incarcerated in the Navy brig.  The Board finds that the Coast Guard’s decision not to retain the 
                                                 
9 10 U.S.C. § 1553(a) (“A motion or request for review must be made within 15 years after the date of the discharge 
or dismissal.”). 
10 33 C.F.R. § 51.9(h) states that the “decision of the DRB may not be reconsidered unless--(1) The only previous 
consideration  of  the  case  was  on  the  motion  of  the  DRB;  (2)  Changes  in  discharge  policy  occur;  or  (3)  New, 
substantial, relevant evidence, not available to the applicant at the time of the original review, is submitted to the 
DRB.”  
11 Ortiz v. Secretary of Defense, 41 F.3d 738, 745 (D.C. Cir. 1994). 
12 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)).   
13 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
14 U.S. COAST GUARD, COMDTINST M1000.6, COAST GUARD PERSONNEL MANUAL (Change 27, 1986). 
15 U.S. COAST GUARD, COMDTINST M1000.6A, COAST GUARD PERSONNEL MANUAL, Arts. 12.B.18. and 20.C.4.1. 
(Change 41, 2007). 

applicant on active duty after his illegal drug use and other crimes was  neither erroneous nor 
unjust. 

The applicant alleged that he received ineffective assistance of counsel because 
his counsel allowed him to plead guilty without a pretrial agreement and did not require that any 
enlisted members serve on his GCM panel.  However, the record shows that the applicant had 
already confessed to having abused drugs and destroying locks to break into the medical freezer 
to steal urine samples and documents.  In addition, the applicant told the DRB that he pled guilty 
without a pretrial agreement because he “[j]ust wanted to throw [him]self on the mercy of the 
court.”  Furthermore, the court decisions on his appeals show that the applicant’s defense counsel 
timely objected to all but one of the trial judge’s decisions that were successfully appealed and 
that one decision—to allow the CO to testify about the applicant’s rehabilitative potential based 
on  the  charged  crimes—was  overturned  on  appeal  based  on  what  was  then  new  case  law.16  
While it is curious that the applicant’s GCM panel was apparently composed of all officers, the 
judge—as well as the defense counsel—presumably informed the applicant of his right to have 
enlisted  members  on  the  panel.    If  they  had  not,  his  appellate  counsel  certainly  could  have 
appealed on that basis, but he did not.  The applicant’s new claim that he was unfairly denied 
trial by enlisted peers is insufficient to overcome the presumption that the trial judge, defense 
counsel, and appellate counsel acted correctly in this regard.  The Board finds that the applicant 
has  failed  to  prove  by  a  preponderance  of  the  evidence  that  his  defense  or  appellate  military 
counsel were ineffective. 

The  applicant  alleged  that  his  discharge  should  be  upgraded  because  he  was 
treated unjustly since he served a period of confinement that was set aside on appeal and his pay 
was stopped illegally after his enlistment ended, which was cruel and unusual punishment under 
the Constitution.  The record shows that the applicant was appropriately retained in the Service 
after  his  enlistment  ended  and  was  also  appropriately  placed  in  pretrial  confinement  after  he 
committed a burglary while the charges for his prior crimes were pending.  The record shows 
that the Chief Counsel found that the law prevented the Coast Guard from paying the applicant 
while he was in confinement, whether pretrial or pursuant to his sentence, because his enlistment 
had ended.  The applicant failed to cite any law to the contrary, and the fact that members in 
pretrial confinement are not entitled to pay after their enlistments end has been upheld in court.17  
In addition, while it is clear that the applicant’s family suffered because of his loss of income, his 
loss  of  income  is  entirely  attributable  to  the  burglary  he  committed  in  February  1987,  which 
made his pretrial confinement necessary.   With  respect to the applicant’s sentence, the record 
shows that he began serving his sentence on the date of his conviction, April 9, 1987, and was 
paroled from confinement less than 14 months later, on May 30, 1988.  Because the applicant 
avoided a rehearing on his sentence by requesting an OTH discharge, it cannot be known what 
sentence he otherwise would have received. 

 
6. 

 
7. 

 
8. 

The  applicant  alleged  that  his  discharge  should  be  upgraded  because  he  was 
coerced into requesting  the OTH discharge  and  he did not understand the prejudice he  would 
face in civilian life.  However, the applicant’s written request for the OTH discharge shows that 
                                                 
16 United States v. Ohrt, 28 M.J. 301 (CMA, 1989) (citing United States v. Horner, 22 M.J. 294 (CMA 1986)). 
17 Williams v. Inch, 2007 WL 6892149 at *4 (D. Kan., 2007); United States v. Fischer, 61 M.J. 415, 416-17 (CAAF, 
2005). 

he requested it voluntarily in accordance with Article 12-B-21 of the Personnel Manual because 
he did not want to attend a rehearing on the sentence and that he was advised of the prejudice he 
would  face  in  civilian  life,  although  he  apparently  did  not  believe  the  advice.    Although  the 
applicant alleged that he was threatened with an even longer period of confinement, that allega-
tion is not credible given the courts’ determinations that the improper testimony during the origi-
nal sentencing phase had increased the period of confinement under the original sentence.   In 
requesting an OTH discharge, the applicant avoided undergoing the rehearing and the possibility 
of a BCD.  The Board is not persuaded that the applicant’s request for an OTH discharge was 
coerced, misinformed, or involuntary. 

 
9. 

 
10. 

 
11. 

The applicant alleged that his discharge should be upgraded because the District 
Commander, who endorsed his request, considered crimes he committed that were prosecuted in 
state courts, rather than by the Coast Guard,  and that were found to have been impermissibly 
entered into evidence during the sentencing phase of his GCM.  However, the applicant’s request 
for an OTH discharge was an administrative matter under Article 12-B-21 of the Personnel Man-
ual,  and  the  rules  of  evidence  did  not  apply.    The  applicant  committed  the  crimes  that  were 
prosecuted by the states of Texas and Florida while he was a member of the Coast Guard, and so 
they were clearly relevant to what type of discharge he should receive.  The Board finds that the 
applicant has not proved that the Coast Guard committed any error or injustice in considering all 
of the misconduct he committed while he was a member of the Coast Guard in determining what 
type of discharge he should receive after he requested the OTH discharge. 

The  applicant  alleged  that  his  OTH  discharge  was  unjust  because  in  positively 
endorsing  his  request  for  the  OTH  discharge,  the  District  Commander  stated  that  he  “served 
about a  year in confinement” and that he was “caught burglarizing the  homes of civilians” in 
Florida after his release from parole.  The applicant alleged that these statements show that the 
District Commander was confused and that he would have received a better discharge had the 
District Commander fully understood the circumstances of his case.  The record shows that the 
applicant was confined from February 6, 1987, through May 30, 1988, which included about two 
months of pretrial confinement and about 14 months of confinement under the sentence that was 
set aside.  The record also shows that the applicant was convicted of just one home burglary in 
Florida, but the record does not show and the applicant did not state how many home burglaries 
he actually committed.  The Board finds that the District Commander’s endorsement is not so 
imprecise or inaccurate as to constitute an injustice against the applicant.  The Board is not per-
suaded that had the  District Commander’s  endorsement been more  exact, the applicant would 
have received a better discharge. 

The applicant alleged that his OTH discharge was unjust because he was treated 
unfairly in that the Coast Guard failed to restore to him rapidly all rights, privileges, and property 
of which he had been deprived by virtue of the sentence that was set aside by the courts.  How-
ever, this issue was litigated before the Court of Military Review, which held on May 11, 1992, 
that the Coast Guard had complied with the order to restore to him all the rights, privileges, and 
property of which he had been deprived as a result of the sentence and that the applicant would 
have to file a  claim for  back pay  since his loss  of pay did not  result from his sentence.  The 
record shows that the applicant received his back pay in July 1992 after filing a claim  as the 

court suggested.  The Board finds that the applicant has not proved by a preponderance of the 
evidence that the Coast Guard committed any error or injustice in this regard. 

The  applicant  argued  that  his  OTH  discharge  should  be  upgraded  to  honorable 
because he  had many  years of honorable service before his misconduct and has been  a  good, 
sober  citizen  since  his  discharge  and  the  Governor  of  Florida  has  restored  most  of  his  rights 
within  that  state.    The  applicant’s  records  show  that  he  was  honorably  discharged  from  the 
Marine Corps in 1974, received an honorable discharge upon completion of his first Coast Guard 
enlistment  in  1981,  and  received  several  consecutive  Good  Conduct  awards  from  the  Coast 
Guard.   In addition, he  has submitted substantial evidence showing that he has indeed been a 
law-abiding, hard-working citizen for many years.   

 
13.  With respect to upgrading discharges, the  deputy  of the Secretary informed the 
BCMR on July 7, 1976, that it “should not upgrade discharges solely on the basis of post-service 
conduct” 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.”18  Under current regulations, members 
who abuse drugs are discharged with no better than a  general discharge.19  The applicant not 
only  abused  drugs  but  committed  several  other  felonies  as  well.    As  in 1992,  members  today 
often request and receive OTH discharges in lieu of further processing under the UCMJ.  The 
fact  that  one  member  of  the  DRB  claimed  that  the  applicant  had  “20  years  of  service  with 
honor,”20 thought that this service outweighed his offenses, and knew “lots of people that have 
done worse” does persuade the Board that the applicant’s OTH discharge is disproportionately 
severe vis-à-vis the conduct in response to which it was imposed.  Many members have received 
BCDs for drug offenses21 and for “housebreaking” under Article 130 of the UCMJ.22 

The Board finds that the applicant has not proved by a preponderance of the evi-
dence that his OTH discharge is erroneous or unjust23 given the circumstances of his case or that 
it is disproportionately severe. 

 
12. 

 
14. 

 
15. 
 
 
 

Accordingly, the applicant’s request should be denied. 

                                                 
18 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military Records (July 8, 
1976). 
19 U.S. COAST GUARD, COMDTINST M1000.6A, COAST GUARD PERSONNEL MANUAL Art. 12.B.18. (Change 41, 
2007). 
20 However, the applicant enlisted in the Marine Corps in 1970 and was first charged with serious criminal offenses 
in 1986. 
21 See, e.g., Matias v. United States, 923 F.2d 821 (Fed. Cir. 1990); Garrett v. Lehman, 751 F.2d 997 (9th Cir. 1985); 
Bowling v.United States, 713 F.2d 1558 (Fed. Cir. 1983). 
22 See, e.g., Scarborough v. U.S. Marine Corps, 2006 WL 1880084 (M.D.Tenn.); Aldridge v. West, 16 Vet. App. 41 
(Table), 1998 WL 136883 (Vet. App.); United States v. Turner, 2009 WL 4917899 (N.M.Ct.Crim.App.). 
23 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). 

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

ORDER 

 

military record is denied.   
 

 

 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 Donna M. Bivona 

 

 

 
 Nancy L. Friedman 

 

 

 
 Dorothy J. Ulmer