DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-099 
 
Xxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx   

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 January 26, 2010, 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  October  21,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, who received a bad conduct discharge (BCD), on March 20, 1987, as the 
sentence of a general court-martial for wrongfully possessing about 30 pounds of marijuana and 
wrongfully distributing about 15 pounds of marijuana, asked the Board to upgrade his discharge 
to honorable so that he will eligible for veterans’ benefits.  He alleged that he has been a model 
citizen  since  his  discharge.    In  support  of  his  allegation,  the  applicant  submitted  five  letters  of 
reference: 
 

  On October 24, 2009, the applicant’s brother stated that the applicant is a model citizen 

and respectable person who holds a steady job and helps people in need. 

In an undated letter, a section leader at a carpet-dyeing factory stated that he has known 
the applicant some 20 years and that the applicant is of good character and respects other 
people.  He stated that the applicant is a hard worker who would do whatever he could for 
a person in need. 

In  a  note  dated  November  2,  2009,  a  driving  instructor  who  has  known  the  applicant 
since 1983 stated that the applicant is respected by his peers in the community and that he 
is honored to call the applicant a friend.  

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In an undated note, another friend stated that he has known the applicant for 10 years and 
that the applicant is a helpful and respectable young man. 

In  an  undated  letter,  someone  who  has  known  the  applicant  all  his  life  stated  that  the 
applicant  has  worked  for  him  and  performed  his  work  well.    He  also  stated  that  the 
applicant is of good character and “has never been in any trouble prior to this to the best 
of my knowledge.”  

SUMMARY OF THE RECORD 

 

 
The  applicant  enlisted  in  the  Coast  Guard  at  age  20  on  October  26,  1981.    On  May  4, 
1983, the applicant was convicted of his offenses at a general court-martial and was sentenced to 
a BCD and 14 months of confinement, which was approved by the convening authority and the 
District Commander.  He was confined from May 4, 1983, to April 10, 1984, placed on appellate 
leave  without  pay,  and  ultimately  discharged  with  the  BCD  on  March  20,  1987,  following 
appellate proceedings and a clemency review.   
 

The  chairman  of  the  clemency  board  stated  that  the  applicant’s  offenses  began  when  a 
crewmate boarded a boat that had been seized and stole about 30 pounds of marijuana.  He hid it 
in  the  backseat  of  the  applicant’s  vehicle  and  showed  the  applicant  the  marijuana  the  next 
morning.  The applicant then “became excited about the prospect of participating in this venture 
and offered to help hide and distribute the stash.”  They drove the marijuana to the garage of a 
relative of the applicant in Fayetteville, North Carolina,  and rebagged it in about 210 sandwich 
bags.  They kept about 30 of these bags for their personal consumption and sold some of the rest.   

 
The  applicant  pled  not  guilty  to  possessing  and  distributing  the  marijuana  and  denied 
having  anything  to  do  with  his  crewmate’s  enterprise.    Family  members  testified  that  he  was 
never in  Fayetteville on  the weekend in  question, but  he  was found  guilty of both  offenses.    It 
was noted that he had been awarded non-judicial punishment (NJP) for possessing marijuana and 
had tested positive for marijuana use just one month prior to his court-martial.  (Records of this 
NJP and drug test are in the applicant’s military record.) 

 
The chairman of the clemency board stated that there were no extenuating circumstances 
that  would  warrant  clemency.    Although  the  crewmate  had  stolen  the  marijuana,  the  applicant 
willingly committed the offenses of which he was convicted.  Moreover, he was found to have 
possessed  and  used  marijuana  again  just  one  month  before  his  trial.    Therefore,  clemency  was 
not  recommended.   The  Commandant’s Chief of  Staff and the Vice Commandant  concurred in 
this recommendation, and the Commandant denied clemency. 
   

VIEWS OF THE COAST GUARD 

 

On May 24, 2010, the Judge Advocate General of the Coast Guard submitted an advisory 
opinion  recommending  that  the  Board  deny  relief  in  this  case.    In  so  doing,  he  adopted  the 
findings  and  analysis  provided  in  a  memorandum  on  the  case  prepared  by  the  Coast  Guard 
Personnel Service Center (PSC). 

 

 

 

The PSC pointed out that the application is untimely since the applicant was discharged 
in 1987 and argued that his request should be denied for untimeliness.  The PSC also stated that 
the applicant’s discharge was properly carried out and that Coast Guard policy does not permit 
members  involved  with  illegal  drugs  to  receive  an  honorable  discharge.    The  PSC  stated  that 
upgrading the applicant’s BCD would be “unwarranted and unjustified.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  May  26,  2010,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast  Guard 

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

APPLICABLE LAW 

 

 Under  Article  12-B-18.b.(4)  of  the  Personnel  Manual  in  effect  in  1987,  any  member 
 
involved  in  a  drug  incident  was  to  be  “separated  from  the  Coast  Guard  with  no  higher  than  a 
general discharge.”   
 
 
Under Article 20.C. of the current Personnel Manual, any member involved in any “drug 
incident”  is  subject  to  an  administrative  discharge  with  no  greater  than  a  General  discharge 
“under honorable conditions.” 
 
 
Under  the  Uniform  Code  of  Military  Justice  (UCMJ),  the  maximum  punishment  the 
applicant  could  have  received  was  a  dishonorable  discharge,  20  years’  confinement,  and  total 
forfeiture of pay and allowances.  The same is true under the UCMJ today. 

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. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552. 
The Board finds that the applicant has exhausted his administrative remedies, as required by 33 
C.F.R. § 52.13(b), because there is no other currently available forum or procedure provided by 
the Coast Guard for correcting the alleged error or injustice. 

 
2. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the  applicant 
discovers,  or  reasonably  should  have  discovered,  the  alleged  error  in  his  record.  10  U.S.C.  
§ 1552; 33 C.F.R. § 52.22.  The applicant was discharged in 1987.  Therefore, his application is 
untimely. 

 
3. 

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.”  Id. at 164, 165; see also Dickson v. Secretary 
of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   

 
4. 

The  applicant  did  not  explain  his  delay  in  seeking  an  upgrade  of  his  discharge.  
However,  his  request  is  based  on  alleged  long-term  post-service  good  conduct,  not  on  any 
alleged error or injustice committed during his years of service.   

 
5. 

The applicant argued that his discharge should be upgraded in the interest of jus-
tice because he has been a model citizen since his discharge in 1987.  However, the delegate of 
the Secretary informed the Board on July 7, 1976, by memorandum that it “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.”1  Under today’s Uniform Code of Military Justice and the Manual for 
Courts-Martial, the maximum punishment allowed for a member who is convicted of possessing 
30  pounds  of  marijuana  and  distributing  marijuana  is  the  same  as  in  1987:  (a)  Dishonorable 
discharge; (b) forfeiture of all pay and allowances; and (c) confinement for 20 years.  Therefore, 
the Board is not persuaded that the applicant’s BCD and 14 months of confinement were dispro-
portionately  severe  in  comparison  to  a  sentence  a  member  would  likely  receive  today  for  the 
same offenses. 

 
6. 

The  Board  does  not,  however,  construe  the  delegate’s  guidance  as  prohibiting  it 
from exercising clemency in court-martial cases under 10 U.S.C. § 1552(f), even if the discharge 
was neither disproportionately severe compared to the misconduct, nor clearly inconsistent with 
today’s Coast Guard standards.  Such a construction would be inconsistent with the very nature 
of “clemency,” which means “mercy or leniency.”2   Clemency does not require that a sentence 
have been unjust or overly harsh; on the contrary, it can be (and often is) forgiveness of punish-
ment that was otherwise appropriate.  An analysis under the 1976 guidance3 primarily considers 
whether  the  past  discharge  was  unjust  at  the  time  or  would  be  unjust  if  applied  to  a  similarly 
situated member today; a clemency analysis considers whether it is appropriate today to forgive 
the past offense that led to the punishment and to mitigate the punishment accordingly. 

 
7. 

This  Board  has  sometimes  granted  clemency  by  upgrading  BCDs  to  General 
discharges under honorable conditions based upon such factors as the applicants being teenagers 
at the time of their offenses or having limited education; having committed comparatively short 
absence  offenses;  having  performed  long,  arduous  sea  duty  in  combat  or  having  served 
honorably during prior enlistments; having been mentally ill; having conducted themselves well 
in post-discharge civilian or military life; and having endured the punitive discharge for a very 
long time.  In this case, however, the applicant was not a teenager, as he enlisted at age 20; his 
offenses  undermined  the  vital  work  of  the  Coast  Guard  in  drug  interdiction;  he  performed  no 
arduous sea duty and has no other, honorable military service; and aside from a few letters from 
his  friends,  he  submitted  no  evidence  to  show  that  he  has  spent  the  last  23  years  as  a  “model 

                                                 
1 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military Records (July 8, 
1976). 
2 BLACK’S LAW DICTIONARY 288 (9th ed., 2009) 
3 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military Records (July 8, 
1976). 

 

 

citizen.”  Moreover, a quick review of public criminal records shows that the applicant has not 
been  a  model  citizen  since  his  discharge  from  the  Coast  Guard.    The  only  factor  favoring 
clemency is the long time that the applicant has suffered the burden of the BCD.  Therefore, and 
in  light  of  the  offenses  for  which  he  received  the  BCD,  the  Board  finds  that  clemency  is 
unwarranted.   

 
8. 

Accordingly, the Board finds that it is not in the interest of justice to excuse the 

untimeliness of the application and the applicant’s request should be denied. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 
 
 
 
 
 
 

 

 

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

his military record is denied.   
 

ORDER 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

        

 
 Philip B. Busch 

 

 

 
 
 Paul B. Oman 

 

 
 Dorothy J. Ulmer