DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-147 
 
XXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXX 

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  application  upon  receipt  of  the 
applicant’s completed application on May 8, 2009, and subsequently prepared the final 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  January  28,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT'S REQUEST AND APPLICANT'S ALLEGATIONS 

 

 
 

 

The applicant asked the Board to correct his record by upgrading his reenlistment code so 

that he is eligible to enlist in the National Guard.   

 
The applicant enlisted in the Coast Guard on July 5, 2000, and was honorably discharged 
on April 1, 2003, by reason of unacceptable conduct.  He was assigned an RE-4 (not eligible to 
reenlist) reenlistment code and a JNC (unacceptable conduct) separation code.  

 
The applicant stated that he made some mistakes while in the Coast Guard due to outside 
influences and that his attempts to rectify them were not successful.  He stated that he did not 
have evidence to support an injustice, but it has been his life-ong dream to serve and retire from 
the  Coast  Guard  as  did  his  father,  grandfather,  and  numerous  uncles.    He  also  stated  the 
following: 
  

When I joined the military I was a child who thought he was a man.  I was single 
and didn’t need to care for anyone but myself, or so I thought.  I am now married. 
I have one child and care for my wife’s two children as if they were my own.  I 
have been employed the entire time since my discharge trying to relieve debt and 
pay bills . . . I provide a roof over my families head and food in their stomachs.  
Again, I only request that you review my military records good points instead of 

only the bad and give me one more chance to do the right thing and retire from 
the United States Armed Forces as a true “Coastie” should. 
 
 

 
The  applicant  stated  that  he  discovered  the  alleged  error  or  injustice  on 
June 1, 2005. He stated that it is in the interest of justice to waive any untimeliness so that 
he  can  follow  in  the  footsteps  of  his  parents  and  other  relatives  who  served  in  the 
military. 
 

APPLICANT’S MILITARY SERVICE 

 

 
 
The applicant was punished at captain’s mast (also known as non-judicial punishment) on 
January 4, 2001, July 18, 2001, and September 5, 2002 for unauthorized absences offenses.  As a 
result of the September 5, 2002 captain’s mast, the CO gave the applicant a letter documenting 
his punishment of 8 days extra duty and reduction to pay grade E-1 (suspended for six months).  
The CO also directed the applicant to devise a written plan to repay $85.00 that he owed to a 
crewmember by the close of the date of the letter.  
 
 
On September 5, 2002,a page 7 was entered into the applicant’s record advising him that 
a six-onth probationary period had begun and that it was scheduled to end on March 5, 2003.  He 
was  advised  that  an  administrative  discharge  would  be  initiated  if  his  performance  did  not 
improve,  if  he  engaged  in  further  conduct  that  that  would  form  the  basis  of  an  unsuitability 
discharge, or if he engaged in misconduct.   
 
 
A  page  7  dated  October  11,  2002,  counseled  the  applicant  about  his  unsatisfactory 
performance  since  September  5,  2002.    The  page  7  noted  that  since  the  probationary  period 
began  on  September  5,  2002,  the  applicant  had  been  late  for  morning  muster  once,  failed  to 
complete a duty assignment, was caught out of uniform by wearing a tongue ring, failed to notify 
his supervisor that he lost his identification card, and allowed the repossession of his automobile 
for failure to make required payments.  The CO notified that the applicant that he would initiate 
proceedings  to  discharge  the  applicant  from  the  Coast  Guard  due  to  unsuitability,  financial 
irresponsibility, and misconduct. The applicant acknowledged this entry on October 23, 2002.     
 

The  applicant’s  record  also  contains  numerous  other  negative  administrative  remarks 
(page 7) entries documenting his misbehavior.  For instance, page 7s noted that the applicant was 
asleep on watch, left the fire watch without permission, made false statements, and refused to 
follow orders.  There are approximately 27 such page 7s in the applicant’s military record.   

 
On November 4, 2002, the applicant’s CO informed him that the CO had initiated action 
to  discharge  the  applicant  from  the  Coast  Guard  due  to  the  applicant’s  continued  trend  of 
unsatisfactory performance and his failure to accept responsibility of his actions.  The CO noted 
the applicant’s violation of his September 5, 2002 probation.   

 
On November 4, 2002, the applicant acknowledged the proposed discharge, waived his 

right to make a written statement, but objected to the discharge.   

On December 2, 2002, the CO recommended to the Commander, Coast Guard Personnel 
Command  (CGPC)  that  the  applicant  be  discharged  by  reason  of  unsuitability  due  to  an 
established pattern of shirking and financial responsibility.   

 
On February 14, 2003, the CO’s superior in the chain of  command recommended that 
CGPC  approve  the  CO’s  request  to  discharge  the  applicant.    On  February  24,  2003,  the 
Commander, Coast Guard District One also recommended that CGPC approve the CO’s request 
to discharge the applicant from the Coast Guard. 

 
On March 4, 2003, CGPC directed that the applicant be discharged from the Coast Guard 
with  an  honorable  discharge  by  reason  of  unsuitability  due  to  apathy,  defective  attitudes,  and 
inability to expend effort constructively under Article 12.B.16 of the Personnel Manual.  CGPC 
directed that the applicant receive a JNC separation code.  The applicant was discharged on April 
1, 2003. 
 
Discharge Review Board (DRB) Decision 
 
 
Prior to filing his application with the BCMR, the applicant submitted an application to 
the DRB for a change in his reenlistment code.  On August 15, 2005, the Commandant approved 
the DRB’s decision not to change the applicant’s reenlistment code.  The DRB members felt that 
the discharge and reenlistment code were in accordance with Coast Guard policy and that the 
applicant failed to show any change in performance since separation from the Coast Guard that 
would merit an upgrade of his reenlistment code.   
 

 

VIEWS OF THE COAST GUARD 

 
 
On  September  30,  2009,  the  Board  received  an  advisory  opinion  from  the  Judge 
Advocate  General  (JAG),  of  the  Coast  Guard  recommending  that  the  applicant’s  request  be 
denied.   
 

The JAG also adopted the facts and analysis provided by Commander, Personnel Service 
Center (PSC) as a part of its advisory opinion.  PSC noted that the application was not timely.  
With respect to the merits, PSC stated that the DRB found the discharge to be in accordance with 
Coast Guard policy.  PSC noted that the applicant did not contest the findings of the DRB, nor 
allege that he had been treated unjustly.  PSC concurred with the findings of the DRB and noted 
that  the  Coast  Guard’s  actions  are  presumptively  correct,  in  the  absence  of  evidence  to  the 
contrary.   
 

APPLICANT'S REPONSE TO THE VIEWS OF THE COAST GUARD 

On October 1, 2009, a copy of the Coast Guard’siews was sent to the applicant for any 

 
 
response that he wanted to make.  The BCMR did not receive a response from the applicant. 
 
 
 

 

When commands contemplate discharging a member for these reasons they shall 
counsel the member that a formal probationary period of at least six months has 
begun  and  make  an  appropriate  administrative  remarks  [page  7],  entry  in  the 
member’s PDR that  administrative discharge processing will be initiated unless 
the member shows significant improvement in overcoming the deficiency during 
the  probationary  period.    The  member  must  acknowledge  this  entry  in  writing.  
Commanding officers are authorized to recommend discharge at any time during 
probation if the member is not attempting to overcome the deficiency.   Submit 
copies  of  all  [page  7]  entries  as  an  enclosure  to  the  discharge  recommendation 
submitted to Commander (CGPC-emp-1).   

 

FINDINGS AND CONCLUSIONS 

APPLICABLE REGULATIONS 

 
 
Article  12.B.16.b.  of  the  Personnel  Manual  authorizes  a  discharge  by  reason  of 
unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.  The 
provision defines this basis for discharge as “A significant observable defect, apparently beyond 
the member’s control, not readily describable elsewhere.”   
 
Article 12.B.16.c. of the Personnel Manual states that a discharge for apathy or defective 
 
attitudes  will  not  be  initiated  until  the  member  has  been  afforded  a  reasonable  probationary 
period to overcome these deficiencies.  The provision further states: 
 

1.    The  Board  has  jurisdiction  of  this  case  pursuant  to  section  1552  of title  10  United 

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

 
 
submissions and military record, the Coast Guard’s submission, and applicable law: 
 
 
States Code.  
 
 
2.  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 discovered, the 
alleged  error  or  injustice.    Under  Ortiz  v.  Secretary  of  Defense,  41  F.3d  738,  743  (D.C.  Cir. 
1994), the Board’s three-year statute of limitation did not begin until the DRB issued its decision 
on August 16, 2005, the date of the letter notifying the applicant of that decision.  The BCMR 
received the applicant’s application on March 19, 2009, more than three years after issuance of 
the DRB decision.  Therefore, the application was not timely.  The applicant’s desire to serve in 
the military as his father and other relatives have done is not a persuasive reason for waiving the 
statute of limitations.   
 

3.  However, the Board may still consider the application on the merits, if it finds 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  in  assessing  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 stated 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."  Id. at 164, 165.   See also Dickson v. Secretary of Defense, 68 F.3d 
1396 (D.C. Cir. 1995). 
 
 
4.    The  Board  is  not  persuaded  to  waive  the  statute  of  limitations  based  on  a  cursory 
review of the merits.  The applicant offered no evidence or argument of an error committed by 
the Coast Guard and the Board finds none in its review.   
 
5.  Nor has the applicant made a persuasive case that he has suffered an injustice.  The 
 
applicant’s request to upgrade his reenlistment code so that he can serve in the military like his 
father did does not persuade the Board that he suffered or suffers from an injustice.  Injustice is 
defined as “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 applicant 
was counseled numerous times about his conduct and behavior, but failed to conform 
his behavior to the requirements of the Personnel Manual and to the expectations of his 
supervisors.  As the CO indicated, he was a burden to the command and his crewmates.   
 
 
6.    The  applicant  stated  that  he  made  mistakes  while  in  the  Coast  Guard  and 
wants another opportunity to serve in and retire from the Coast Guard.  He stated that 
he is now a married father who has been steadily employed since his discharge, but he 
did  not  provide  any  corroboration  of  his  post-service  life  changes.    Such  post-service 
conduct  and  behavior  even  if  true,  is  insufficient  to  prove  that  he  should  have  his 
reenlistment code upgraded or that the Coast Guard treated him unjustly by assigning 
the RE-4 reenlistment code at the time of discharge.  The applicant’s record of negative 
page 7 entries and non-judicial punishments more than support the assignment of the 
RE-4 reenlistment code.     
 

 
7.  Accordingly,  the  applicant  has  failed  to  prove  an  error  or  injustice  and  his  request 

should be denied.    

 
 
 
 
 
 
 

 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

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

ORDER 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 
 Robert S. Johnson, Jr. 

 

 

 
 Randall J. Kaplan 

 

 

 

 

 
 
 Thomas H. Van Horn 
  

 

 

 

        

 

 

 

 

 

 
 

 
 

 
 
military record is denied.