DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-144 
 
xxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxx   

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 May 8, 2009, and assigned it to staff member J. Andrews to prepare the 
decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated February 25, 2010, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  who  received  a  general  discharge  under  honorable  conditions  from  the 
Coast Guard on June 23, 2002, for misconduct, asked the Board to correct his record by upgrad-
ing his discharge to honorable so that he will be able to use his educational benefits under the 
Montgomery G.I. Bill (MGIB).1   
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

On September 28, 1998, the applicant enlisted in the Coast Guard for four years.  During 
boot  camp,  he  was  counseled  about  the  MGIB  and  signed  a  form,  DD  2366,  on  which  he 
declined to disenroll from the MGIB program and was therefore enrolled.  The form provides 
thirteen numbered sentences of information about the program, the ninth of which states that a 
member must receive an honorable discharge to be entitled to benefits under the MGIB.  Upon 
completing boot camp, the applicant was assigned to a cutter. 
                                                 
1 38 U.S.C. § 3001 et seq.  Under 38 U.S.C. § 3011(b), upon enlistment on active duty, a member is automatically 
enrolled for MGIB benefits and deductions are made from his basic pay, unless the member makes an election under 
subsection (c)(1).  Subsection 3011(c)(1) states that a  member “may  make an election  not to receive educational 
assistance under this chapter.  Any such election shall be made at the time the individual initially enters active duty 
as  a  member  of  the  Armed  Forces.    Any  individual  who  makes  such  an  election  is  not  entitled  to  educational 
assistance under this chapter.”  Under 38 U.S.C. § 3011(b), unless members purposefully disenroll themselves from 
the program at the time they first enlist on active duty, the Service deducts $100 from their pay each month for the 
first 12 months or until at total of $1,200 has been deducted, and they become eligible for educational benefits. 

 
On June 2, 1999, the applicant was counseled about his poor performance on a Page 7 
Administrative  Remarks  entry  in  his  record.    The  Officer  in  Charge  counseled  the  applicant 
about his “behavior and attitude problem” and warned him that “any future incidents may lead to 
disciplinary action.” 

 
On June 24, 1999, the applicant was charged with having a female minor in his barracks 
room  overnight  in  violation  of  Articles  92  and  134  of  the  Uniform  Code  of  Military  Justice 
(UCMJ).  On June 28, 1999, the applicant received non-judicial punishment (NJP) “for engaging 
in an inappropriate relationship and adultery.”  He was awarded 14 days of restriction to the cut-
ter with extra duties. 

 
On October 5, 2000, the applicant was counseled on a Page 7 about his poor performance 
as a lookout watchstander.  He was advised that any further improper watchstanding would result 
in the revocation of his qualification and disciplinary action. 

 
On November 3, 2000, the applicant was counseled on a Page 7 about his poor work per-
formance.  He was given extra military instruction and advised that any further incidents would 
result in disciplinary action. 

 
On January 31, 2001, the applicant, who had advanced to seaman, was  placed on per-

formance probation.  The Page 7 counseling entry states the following: 
 

1.  This is to inform you that for the previous six months, your performance has been unsatisfac-
tory compared to your peers in your pay grade.  You are considered to be on performance proba-
tion because of your inability to adhere to the Coast Guard core values.  You must take stock of 
your actions that have caused this situation to develop and take corrective action.  Your perform-
ance must improve over the next six months, or you will be considered for discharge. 
 
2.  The reasons you are being placed on performance probations are: 
a.  Your inability to adhere to the Coast Guard core value of Honor.  Specifically, your 
 
failure to be truthful and forthright.  When asked for your location and whereabouts on a day that 
you  had been released from  duty to attend to  your sick  wife,  you lied about  your location to a 
commissioned officer and four different petty officers. 
 
b.  Your inability to adhere to the Coast Guard core value of Devotion to Duty.  Specifi-
cally, your failure to stand a proper watch.  You have been counseled, per CG-3307 of 13 SEP 01, 
on  your  improper  and  inattentive  standing  of  a  lookout  watch.    Your  improper  watchstanding 
endangered the entire ship, and when you were assigned additional duties, you failed to perform 
these properly. 
c.  Your inability to adhere to the Coast Guard core value of Devotion to Duty.  Specifi-
 
cally, your poor work performance.  You have been counseled, per CG-3307 of 03 NOV 00, on 
your unsatisfactory quality of work while priming and painting hand rails.  When instructed prop-
erly, you again failed to complete the task correctly and were assigned 8 hours of EMI as a result. 
 
3.  To be taken off performance probation you must improve your performance by: 
 
and work performance. 
 
cers. 
 

a.  Demonstrating a strong commitment to [the cutter] through improved watchstanding 

b.  Being truthful, forthright, and respectful to all commissioned officers and petty offi-

4.  You have been removed from the HS “A” School list until your performance improves and you 
are removed from performance probation. 
 
Another Page 7 dated January 31, 2001, states that on a recent duty day the applicant had 
requested and been granted liberty to care for his wife, who he said was ill.  However, several 
shipmates saw the applicant and his wife at a night club that evening.  When he was questioned 
the next day about his activity that evening, he lied even though he was told he had been seen at 
a night club.  The applicant was assigned extra military instruction and received a very low mark 
of 2 in the performance category  “Integrity” on his performance evaluation dated January 31, 
2001. 

 
On May 7, 2001, the applicant was counseled on a Page 7 about failing to work when his 
supervisors were not present.  The applicant was given extra military instruction and advised that 
any further incidents would result in additional disciplinary action. 

 
On July 12, 2001, the applicant was counseled about his poor performance on a Page 7, 
which states that he had ignored his work and had to be asked continually to complete assigned 
tasks, which he failed to accomplish. 

 
On  March  1,  2002,  the  applicant  was  arrested  by  police  in  Panama  City,  Florida,  and 
charged  with  child  abuse.    The  report  of  his  arrest  states  that  he  had  bitten  his  two-year-old 
daughter, leaving a bruise on her leg, to try to teach her not to bite her brother. 

 
On March 5, 2002, the applicant’s command was notified that an audit of the command’s 
Government Citibank Mastercard accounts had revealed that the applicant had used his card for a 
cash advance, that he had a balance of $343.39 that was more than 120 days overdue, and that 
his account had therefore been canceled and closed. 

 
On April 1, 2002, the applicant was counseled on a Page 7 about a complaint the com-
mand had received from a pediatric doctor at an Air Force hospital.  The doctor complained that 
the  applicant  had  “used  inappropriate  behavior,  mannerisms,  and/or  language”  with  the  emer-
gency room staff. 

 
Also on April 1, 2002, the applicant was counseled on a Page 7 about failing to keep his 

This adverse entry is a compilation of events that demonstrate significant discrepancies in  your 
performance.  Specifically  your quality of  work,  monitoring of  work, communicating, integrity, 
loyalty, responsibility, setting an example and carrying your share of the work load. 
04 MAR 02:  While working aton [aid to navigation] CG 21430 parted a tag line.  Being responsi-
ble for the daily check offs for CG21430, [the applicant] falsified the check off sheet and when 
questioned replied that the tag line was on the boat.  When confronted with the fact there was no 
tag line onboard, [he] had no explanation. 
08 MAR 02:  [The applicant] failed to clean the bilge of CG 21430 as directed.  At four times 
during  the  day,  member  was  properly  instructed  and  falsely  reported  completing  the  task, 
attempting once to cover up some of the grime with battery boxes. 

barracks room tidy. 

 

 
On April 4, 2002, the applicant was counseled on a Page 7 as follows: 

27 MAR 02:  [A petty officer] handed out tasks this date for all of the deck force.  When the QM2 
went to check on their progress, he noted [the applicant] had not been where he was assigned for 
over 45 minutes.  After checking with all supervisors it became apparent that [the applicant] had 
not been using the allotted time effectively. 
01 APR 02:  [A petty officer] assigned a painting project to deck force at 0900 and proceeded to 
get underway.  [The applicant] avoided this by asking a different supervisor if he could work on a 
lead line.  When the BM3 returned from being underway  at 1130 he discovered  what  had hap-
pened and found that [the applicant] did not have the  materials to  work on the lead line.  [The 
applicant] admitted this and that he only worked on the line for 10 minutes.  When questioned, 
[he] could not explain where he was or what he was doing for 2 ½ hours. 
 
On April 4, 2002, the applicant was charged with violating Articles 92, 107, and 134 of 
the UCMJ by being derelict in his duties and failing to obey orders, by gundecking 21 check-offs 
and employing other deceptions on assigned tasks, by improperly using his Government credit 
card and failing to pay a debt that was eight months overdue, and by bringing discredit upon the 
Coast Guard through his behavior in the hospital emergency room. 

 
On April 25, 2002, the Group Commander initiated the applicant’s discharge “for unsuit-
ability.”2   In a memorandum to the Coast Guard Personnel Command (CGPC), he wrote that the 
applicant had become “a tremendous burden to this unit and his fellow shipmates” and appended 
to the recommendation twelve Page 7s regarding the applicant’s poor performance and conduct 
and the report of his arrest for child abuse.  The Group Commander noted that the applicant’s 
“court date has been set for 7 May 2002.”  He recommended that the applicant receive a general 
discharge. 

 
On April 30, 2002, the Group Commander notified the applicant that he had initiated the 
applicant’s discharge because of his lack of military aptitude and performance and his “refusal to 
adhere to military rules and regulations.”  The Group Commander noted that Commander, CGPC 
would determine what type of discharge the applicant would receive.  The applicant acknowl-
edged receipt of this notification the same day.  He indicated that he disagreed with the recom-
mendation for discharge but would not submit a statement on his own behalf. 

 
On May 10, 2002, the District Commander forwarded the discharge package to CGPC 
“strongly  recommending  approval”  based  on  the  applicant’s  “trend  of  unsatisfactory  perform-
ance” and “disregard for the Coast Guard’s core values.” 

 
On May 21, 2002, the State dropped the charge of child abuse against the applicant. 
 
On May 23, 2002, CGPC ordered the applicant’s command to discharge him for miscon-
duct on June 21, 2002, with a general discharge3 due to his frequent involvement of a discredit-
able nature with military and/or civilian authorities, pursuant to Article 12.B.18. of the Personnel 
Manual. 
 

                                                 
2 Article 12.B.16.b. of the Coast Guard Personnel Manual states that a member may be discharged for unsuitability 
due to “apathy, defective attitudes, and inability to expend effort constructively.” 
3  Article  12.B.2.f.2.b.(2)  of  the  Coast  Guard  Personnel  Manual  provides  that  a  member  may  receive  a  general 
discharge “[w]hen based on the individual’s overall military record or the severity of the incident(s) which results in 
discharge, Commander, (CGPC-epm-1) directs issuing a general discharge.” 

On  June  21,  2002,  the  applicant  received  a  general  discharge  “under  honorable  condi-

tions” for misconduct with an RE-4 reenlistment code (ineligible for reenlistment). 

 
  On June 16, 2005, the applicant asked the Discharge Review Board (DRB) to upgrade 
his discharge and reenlistment code.  He stated that he wanted to enlist in the Reserve.  The DRB 
found that the applicant’s discharge was proper and equitable and recommended denial of his 
request on August 31, 2005.  The Acting Commandant approved the DRB’s decision on Novem-
ber 21, 2005, and the applicant was notified of the denial of his application on November 22, 
2005.    The  applicant  was  also  notified  of  his  right  to  apply  to  the  Board  for  Correction  of 
Military Records for further consideration. 
 

VIEWS OF THE COAST GUARD 

 

On September 30, 2009, the Judge Advocate General (JAG) of the Coast Guard submit-
ted an advisory opinion recommending that the Board deny the applicant’s request for untimeli-
ness and lack of merit.   

 
The JAG stated that the application was untimely because the applicant submitted it more 
than three years after his application to the DRB was denied and failed to explain his delay.  The 
JAG stated that the applicant has “not provided any relevant documentation or rationale to sup-
port his position.” 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On October 5, 2009, the Chair sent the applicant a copy of the views of the Coast Guard 

 
 
and invited him to submit a written response within 30 days.  No response was received. 
 

 

APPLICABLE REGULATIONS 

 
 
Article  12.B.18.b.  of  the  Coast  Guard  Personnel  Manual  in  effect  in  2002  stated  that 
Commander, CGPC could direct the discharge of an enlisted member for misconduct because of 
the member’s  “discreditable involvement with  civil or military  authorities,” abuse of a  family 
member; established pattern of shirking, drug abuse, etc.  Article 12.B.18.a. states that the type 
of such a discharge may be honorable, general, or under other than honorable (OTH) conditions.  
Article 12.B.18.c. states that the member must be afforded a probationary period before the dis-
charge is initiated.  Article 12.B.18.e. states that when initiating the honorable or general dis-
charge for misconduct of a member with less than eight years of military service, the command-
ing officer shall 
 

1. Inform the member in writing of the reason(s) for being considered for discharge (specifically 
state one or more of the reasons listed in [see] Article 12.B.18.b. supported by known facts). 
 
2. Afford the member an opportunity to make a written statement.  If the member does not desire 
to do so, the commanding officer sets forth that fact in writing over the member’s signature.  If the 
member refuses to sign a statement his or her commanding officer will so state in writing. 
 
3.  Afford  the  member  an  opportunity  to  consult  with  a  lawyer  as  defined  by  Article  27(b)(1), 
UCMJ, if contemplating a general discharge.  If the member requests counsel and one is not avail-

able, the commanding officer must delay discharge proceedings until such time as counsel is avail-
able. 

 

FINDINGS AND CONCLUSIONS 

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

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

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

1. 
 
2. 

 
3. 

 
4. 
 
5. 

 
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 in this case  filed his  application more than 
three years after he knew or should have known of the alleged errors on his discharge form, DD 
214, and more than three years after the decision of the DRB.4  Therefore, his application was 
not timely.  

Pursuant to 10 U.S.C. § 1552(b), the  Board may  excuse the untimeliness of an 
application if it is in the interest of justice to do so.  In Allen v. Card, 799 F. Supp. 158, 164 
(D.D.C. 1992), the court stated that to determine whether the interest of justice supports a waiver 
of the statute of limitations, the Board “should analyze both the reasons for the delay and the 
potential merits of the claim based on a cursory review.”  The court further instructed that “the 
longer the delay has been and the weaker the reasons are for the delay, the more compelling the 
merits would need to be to justify a full review.”5 

The applicant did not explain the delay of his application. 

A cursory review of the merits of this case indicates that the applicant’s general 
discharge for misconduct with an RE-4 reenlistment code was not unjust.6  The many negative 
Page 7s in the applicant’s record strongly support the decision of Commander, CGPC to award 
the  applicant  a  general  discharge  due  to  frequent  involvement  of  a  discreditable  nature  with 
military and/or civilian authorities pursuant to Article 12.B.18. of the Personnel Manual.  The 
Board notes that it is not clear from the record whether the applicant was ever notified of his 
right  to  consult  counsel  under  Article  12.B.18.e.  because  of  the  proposed  general  discharge.  
However, assuming arguendo that he was denied the right to consult counsel about his pending 
general discharge, the Board finds that this failure per se would not justify granting relief in this 
case because the applicant’s long pattern of shirking and other misconduct amply justified his 
general discharge for misconduct.  Therefore, based on the record before it, the Board finds that 
the applicant’s claim cannot prevail on the merits. 
                                                 
4 Under Ortiz v. Secretary of Defense, 41 F.3d 738, 743 (D.C. Cir. 1994), a BCMR application is considered timely 
if it is filed within 3 years of the decision of the DRB, which has a 15-year statute of limitations. 
5 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992); see also Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995).   
6 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). 

Accordingly, the Board will not excuse the application’s untimeliness or waive the 

statute of limitations.  The applicant’s request should be denied. 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
6. 

 

 
 

The  application  of  former  SN  xxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 

military record is denied. 
 
 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

        

 
 Bruce D. Burkley 

 

 

 
 Francis H. Esposito 

 

 

 
 Erin McMunigal