DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-173 
 
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 upon receiving the applicant’s 
completed  application  on  June  15,  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 February 25, 2010, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

The applicant, who was discharged under other than honorable (OTH) conditions due to 
homosexuality on January 18, 1955, asked the Board to upgrade his discharge to honorable.  He 
stated that he did not apply for an upgrade earlier because he did not know until 2008 that it was 
possible to have his discharge upgraded.   

 
The applicant alleged that his OTH discharge was unjust because he “had no control over 
[his]  genes  or  sexual  preference.”    He  stated  that  he  enlisted  “as  a  high  school  dropout”  and 
never intended to embarrass the Coast Guard.  In support of his request, the applicant submitted 
several letters from long-time friends and neighbors who lauded his character.  
 

SUMMARY OF THE RECORD  

 
 
On October 12, 1953, at age 17, the applicant enlisted in the Coast Guard for four years.  
Following recruit training, he served at Group Sandy Hook for several months and was trans-
ferred to the cutter JONQUIL on October 14, 1954.   
 
 
On December 21, 1954, the applicant was admitted to a Public Health Service hospital in 
Norfolk, Virginia, for psychiatric evaluation.  The diagnosis listed on the Final Medical Certifi-
cate dated December 31, 1954, is homosexuality.  A Board of Medical Survey found him to be 

unfit for duty and recommended that he be administratively discharged.  The board reported the 
following: 
 

This 18 year old white male C.G. was admitted to this hospital on 12-21-54 for NP observation.  
Accompanying the patient was a letter written and signed by him stating that he is a homosexual.  
… He states that he has gotten along well in the Coast Guard but desires to get out of the Coast 
Guard because of his condition and states that he fears he may get in trouble if he remained in the 
Coast Guard.  The patient states emphatically that he desires no treatment for his condition, and it 
is his firm conviction that there is nothing wrong with being the way that he is. … He was seen by 
Dr. [T], the civilian psychiatric consultant, who was of the opinion that the patient [is] definitely 
homosexual and who further felt that by virtue of this condition he would be an undesirable person 
to keep in the Coast Guard. 

 

On December 31, 1954, the commanding officer of the JONQUIL sent the Commandant 

a memorandum recommending his discharge as follows: 
 

1.  In accordance with [Article 12-B-12(5)c of the Personnel Manual], it is recommended that [the 
applicant] be discharged fro the service for reason of homosexuality. 
 
2.  On 21 December 1954, [the applicant], of his own accord, reported to his division officer that 
he was a homosexual.  This came as a complete surprise to his division officer and all other offi-
cers  on  board.    He  was  advised  that  he  was  privileged  to  submit  a  statement  requesting  a  dis-
charge, and he submitted the enclosed statement. 
 
3.  … Since being attached to this vessel his performance of duty and conduct have been satisfac-
tory and no unusual reports have been received concerning his activities. … 
 
4.  He stated that he has had no homosexual relations with any military personnel while attached 
to this vessel. 
 
5.  After being examined by  medical authorities at USPHS Hospital,  Norfolk,  Virginia, he  was 
returned  to  this  vessel  this  date  marked  “Not  fit  for  duty.”    He  was  granted  thirteen  (13)  days 
accrued  leave  this  date  awaiting  action  by  the  Commandant.    He  was  warned  that  if  he  were 
apprehended  in  homosexual  relations  in  the  interim,  that  it  may  affect  the  type  of  discharge  he 
would receive. 
 
The commanding officer attached to his memorandum a statement signed by the appli-

 
cant and dated December 21, 1954, in which the applicant claimed to be homosexual. 
 

On January 18, 1955, the applicant was discharged under other than honorable  (OTH) 
conditions by reason of “unfitness” in accordance with Article 12-3-40A of Coast Guard Regu-
lations.  He was issued an “undesirable” discharge certificate.  His final average marks (on a 4.0 
scale) were 3.2 for proficiency in rating and 4.0 for conduct. 
 

 

VIEWS OF THE COAST GUARD 

 
 
On September 30, 2009, the Judge Advocate General of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board grant relief and adopted the findings 
and analysis provided in a memorandum on the case prepared by the Coast Guard Personnel Ser-
vice Center (CGPSC). 

 

CGPSC noted that the application is untimely but stated that his application should be 
considered on its merits “in the interest of equity.”  CGPSC stated that under Article 12.E.4.1. of 
the  current  Personnel  Manual,  a  member  being  discharged  because  of  homosexuality  receives 
either an honorable or a general discharge “unless aggravating circumstances are included in the 
findings.”    Because  there  are  no  aggravating  circumstances  evident  in  the  applicant’s  case, 
CGPSC recommended that the applicant’s discharge be upgraded to honorable. 
 

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 response within 30 days.  No response was received. 
 

APPLICABLE LAW 

 

 
Article 12-B-12 of the Personnel Manual (CG-207) in effect in 1955 authorized “undesir-
 
able” discharges for members due to “unfitness.”  Article 12-B-12(f)(1) of the manual stated that 
homosexuality was a psychiatric problem and a condition “at variance with the normal, mature, 
adult  sexual  development,”  but  that  “[b]arring  psychosis,  individuals  should  be  held  socially 
responsible  and  accountable  for  their  acts.    Those  who  have  committed  homosexual  offenses 
should be held accountable for their failure of control.”  Article 12-B-12(f)(2) stated that homo-
sexual acts should be punished “to maintain proper order and morale” and because of “the cor-
rective influence on the individual himself.”  Article 12-B-12(f)(3) stated the following: 
 

Known homosexual individuals are military liabilities and must be eliminated from the Service.  
Commanding officers receiving information indicating that a person in the Coast Guard possesses 
homosexual tendencies or  has engaged in an act of  homosexuality  shall inquire  thoroughly and 
comprehensively into the matter and ascertain all the facts and circumstances of the case, bearing 
in mind the peculiar susceptibility of such cases to possible malicious charges. 

 
 
Article 12-B-12(f)(5) divided members into Class I, Class II, and Class III homosexuals.  
For Class I, which included members who had used force or coercion or who engaged in sex acts 
with  a  child  under  the  age  of  16,  trial  by  court-martial  was  mandatory.    For  Class  II,  which 
included members who had “engaged in one or more homosexual acts or where evidence sup-
ports a proposal or attempt to perform an act of homosexuality,” members were to be tried by 
court-martial “unless the member shall, in writing, as provided for below, elect to receive the 
benefit of avoiding courts-martial proceedings by agreeing to be administratively discharged for 
undesirability by reason of unfitness.”  Class III included “cases wherein personnel only exhibit, 
profess,  or  admit  homosexual  tendencies  and  wherein  there  are  no  specific  provable  acts  or 
offenses,  or  courts-martial  jurisdiction  does  not  exist.”    For  Class  III  members,  Article  12-B-
12(f)(5)(c)  encouraged  “prompt  administrative  separation”  after  the  member  was  “advised  to 
submit a written statement, setting forth in fullest detail his history with reference to his [homo-
sexual] condition. … Likewise, such a person may be informed that he is privileged to submit his 
request for discharge under other than honorable [OTH] conditions for the good of the service, 
and upon receipt of such discharge request, all facts will be considered and decision made as to 
whether the separation should be under other than honorable conditions or a higher form.” 
 

 
Article 12-B-3(a) stated  that a member  could be honorably discharged for a variety of 
reasons, including “unfitness,” based upon “[p]roper military behavior and proficient perform-
ance of duty with due consideration for the member’s age, length of service, grade and general 
aptitude. …  The individual must have made a minimum final average of 2.7 in proficiency and 
3.0 in conduct.” 
 
Current Law and Regulations 
 
 
Under 10 U.S.C. § 654(b), military members may be discharged for homosexual acts or 
for admitting to homosexual orientation.  Article 12.E. of the current Personnel Manual contains 
the Coast Guard’s policies regarding homosexuality.  Article 12.E.1. describes the general policy 
established  by  the  Secretary  of  Defense  and  summarizes  it  as  “Don’s  Ask,  Don’t  Tell”  and 
“Don’t Pursue, Don’t Harass.” 
 

Article 12.E.3. states that members may be separated for homosexual acts, homosexual 
marriage,  or  admissions  or  other  statements  indicating  a  propensity  to  engage  in  homosexual 
acts.  Article 12.E.4. concerns the type of discharge that a member may receive under this policy: 
 

Characterization of service will be determined in accordance with Articles 12.A.2. (for officers) 
and 12.B.2. (for enlisted members) subject to this guidance: 

1. For both officers and enlisted members, a discharge shall be characterized as “Honorable” 
or “General (Under Honorable Conditions)” if the sole basis for separation is homosexual conduct 
unless aggravating circumstances are included in the findings. 

2. For both officers and enlisted members, separation may be characterized as “Under Other 
Than Honorable Conditions” [OTH] only if there is also a finding that during the current term of 
service the member attempted, solicited, or committed a homosexual act under any of these aggra-
vating circumstances: 

a. By using force, coercion, or intimidation; 
b. With a person under 16 years of age; 
c. With a subordinate in circumstances that violate customary military superior/subordi-
nate relationships; 
d. Openly in public view; 
e. For compensation; 
f. Aboard a military vessel or aircraft; or 
g. In another location subject to military control under aggravating circumstances noted 
in the finding that adversely affect discipline, good order, or morale comparable to the 
impact of such activity aboard a vessel or aircraft. 

 
Article 12.B.2.f.1.c. states that, to receive an honorable discharge prior to 1983, a “mem-

ber must have made a minimum final average of 2.7 in proficiency and 3.0 in conduct.”   
 

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 over this matter under 10 U.S.C. § 1552(a).   

1. 
 

2. 

3. 

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.1  The applicant 
received his OTH discharge in 1955.  Therefore, the application is untimely. 
 

The Board may excuse the untimeliness of an application if it is in the interest of 
justice to do so.2  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.”3 

Regarding the delay of his application, the applicant stated that he was unaware 
that his discharge could be upgraded until 2008.  The Board finds that the applicant’s explanation 
for  his  delay  is  not  compelling  because  he  failed  to  show  that  anything  prevented  him  from 
inquiring about an upgraded discharge more promptly.  However, a cursory review of the record 
reveals that the Coast Guard has recommended that the Board grant relief and that the applicant’s 
request  will  prevail  on  the  merits.    Therefore,  the  Board  will  excuse  the  untimeliness  of  the 
application and consider it on the merits. 

The  applicant  alleged  that  his  OTH  discharge  for  homosexuality  is  unjust.    In 
1976, the Board received the following instruction regarding veterans’ discharges from the dele-
gate of the Secretary, which he stated was to be “binding on the Board until specifically reversed 
by one of my successors”:4   

 
[T]he  board  should  not  upgrade  discharges  solely  on  the  basis  of  post-service  conduct.  … This 
emphatically does not mean that the justness of a discharge must be judged by the criteria preva-
lent at the time it was rendered.  The Board is entirely free to take into account changes in commu-
nity mores, civilian as well as military, since the time of discharge was rendered, and upgrade a 
discharge if it is judged to be unduly severe in light of contemporary standards … [T]he Board 
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. 
 

 
4. 

 
5. 

 
6. 

Therefore, the Board must determine whether the applicant’s undesirable/OTH discharge is dis-
proportionately severe in light of today’s standards.   

The record shows that the applicant received an undesirable/OTH based solely on 
an admission of homosexuality.  He signed a statement dated December 21, 1954, in which he 
wrote that he was homosexual, and he was discharged because of that confession.  There is no 
evidence of misconduct or performance problems in his record, and his CO reported to the Com-

                                                 
1 10 U.S.C. § 1552(b); 33 C.F.R. § 52.22. 
2 10 U.S.C. § 1552(b). 
3 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).   
4 Memorandum of the General Counsel, U.S. Department of Transportation, to J. Warner Mills, et al., Board for 
Correction of Military Records (July 8, 1976) (on file with the Board). 

mandant  that  the  applicant’s  performance  and  conduct  had  been  satisfactory.    The  applicant’s 
final average marks met the requirements for an honorable discharge for unfitness.5     

  Types  of  administrative  discharge  are  determined  by  regulation,  not  statute.6  
The Board’s comparison of current and 1955 Coast Guard regulations reveals that policies with 
respect to homosexuality and types of discharge have changed significantly since 1955.  In 1955, 
members who admitted to homosexuality were “privileged” and encouraged to submit a written 
statement setting forth their sexual history “in fullest detail” and requesting a “discharge under 
other than honorable conditions for the good of the service.”7  Under 10 U.S.C. § 654(b) and 
Article 12.E.3. of the current Personnel Manual, a member of the Coast Guard may still be dis-
charged if he states that he is homosexual.  However, a discharge because of homosexuality is 
normally honorable or general, depending upon the member’s evaluation marks.  Currently, OTH 
discharges are only awarded when a member has attempted, solicited, or committed a homosex-
ual act under one of the aggravating circumstances listed in Article 12.E.4. of the Personnel Man-
ual.8 

Therefore,  the  Board  finds  that  the  applicant’s  undesirable/OTH  discharge  for 
having admitted to being homosexual is disproportionately severe in light of today’s standards.  
Given his satisfactory performance and conduct while on active duty, the Board finds that in the 
interest of justice his discharge should be upgraded to honorable. 

 
7. 

 
8. 

 

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
5  U.S.  COAST  GUARD,  CG-207,  PERSONNEL  MANUAL,  Art.  12-B-3(a);  U.S.  COAST  GUARD,  COMDTINST 
M1000.6A, PERSONNEL MANUAL, Art. 12.B.2.f.1.c. (Change 41, 2007). 
6 10 U.S.C. § 1169 (2009) (“No regular enlisted member of an armed force may be discharged before his term of 
service expires, except--(1) as prescribed by the Secretary concerned; (2) by sentence of a general or special court 
martial; or (3) as otherwise provided by law.”); see Gay Veterans Assoc. v. Secretary of Defense, 668 F. Supp. 11, 
14-15 (D.D.C. 1987) (noting that by referring to the types of discharge in many statutes regarding veterans’ benefits, 
“Congress has actually ratified the military’s system of administrative discharges”), aff’d, 850 F.2d 764 (D.C. Cir. 
1988). 
7 U.S. COAST GUARD, CG-207, PERSONNEL MANUAL, Art. 12-B-12(f)(5)(c) (1955). 
8 U.S. COAST GUARD, COMDTINST M1000.6A, PERSONNEL MANUAL, Art. 12.E.4. (Change 41, 2007). 

 
The Coast Guard shall correct his record to show that he received an honorable discharge 

and shall send him an honorable discharge certificate.  

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Bruce D. Burkley 

 

 

 
 Francis H. Esposito 

 

 

 
 Erin McMunigal 

 

 

 

 

 

 

 

 

 

 

 

 

 

The application of former SN xxxxxxxxxxxxxxxxx, USCG, for correction of his military 

record is granted.   

ORDER