DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-193 
 
Xxxxxxxxxxxxx 
xxxxxxxxxxxxx 

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  June  21,  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  March  24,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  who  received  an  administrative  discharge  under  “other  than  honorable” 
(OTH)  conditions  on  December  14,  2007,  asked  the  Board  to  upgrade  his  OTH  discharge  to 
honorable.1  The applicant stated that his discharge was unjust because of his “health, miscom-
munication, and violation of rights.” 
 
 
The  applicant  alleged  that  the  Coast  Guard  wrongfully  accused  him  of  desertion.    He 
stated that he was authorized leave from a Sector field office at the time his command claimed he 
had deserted.  He argued that it was illogical for the Sector command to authorize leave for him 
if they thought he would not return.  The applicant also alleged that at the time, he was disabled 
from two car accidents.  He argued that he should have been evaluated by a medical board and 
noted that following his discharge, he received a 100% disability rating through Social Security.  
The  applicant  alleged  that  even  though  the  Coast  Guard  knew  he  was  severely  disabled,  he 
received an OTH discharge just a few days after his third car accident.  He alleged that none of 
the car accidents were his fault.  In support of these allegations, the applicant submitted the fol-
lowing documents: 
 

                                                 
1  The  5  authorized  types  of  discharge  are  Honorable,  General  Under  Honorable  Conditions,  Under  Other  than 
Honorable Conditions, Bad Conduct, and Dishonorable.  Bad conduct and dishonorable discharges are only awarded 
by court-martial.  Personnel Manual, Article 12.B.2.c. 

•  A letter dated January 26, 2007, from the applicant’s supervisor to his mother states that 
the applicant had been declared a deserter as of that date and suggested that she urge him 
to surrender to the nearest unit if she knew where he was. 

•  The last page of an investigation, which is summarized in the Summary of the Record 

below.  

•  Following an consultation with the applicant on May 3, 2007, a psychologist wrote that 
“[t]his patient suffers from chronic pain and was using alcohol to help deal with the con-
stant and severe facial pain he has experienced since last November.  He does not meet 
the diagnostic criteria for substance abuse or dependence and is recommended [to] return 
to duty without treatment [at SARP, a substance abuse rehabilitation program]. …  In my 
opinion, he needs to be seen by a pain specialist and also likely needs a Physical Evalua-
tion Board as he does not appear to be fit for full duty.” 

•  An unapproved leave request dated July 16, 2007, shows that the applicant asked to go on 

leave from July 22, 2007, to August 4, 2007.   

•  A letter from the Social Security Administration (SSA), dated March 18, 2010, notifies 
the applicant that the SSA had made a “fully favorable” decision on his application for 
supplemental security income.  The SSA reported that the applicant had not engaged in 
substantial gainful activity since December 14, 2007 (his discharge date); that he suffered 
from the following severe impairments: major depressive disorder, trigeminal neuralgia, 
left shoulder bursitis, and hypertension; that the applicant’s “substance use disorder(s) is 
not a contributing factor material to the determination of disability”; and that the appli-
cant had been disabled since December 14, 2007. 

SUMMARY OF THE RECORD 

 

 

 

 

 

 
 
On  August  21,  2006,  at  the  age  of  28,  the  applicant  enlisted  in  the  Coast  Guard.    He 
attended basic training and, following graduation on October 13, 2006, was granted two weeks 
of leave and then assigned to Station Xxxxxxxxxxxxxxxxxxxxxxxxx. 
 
 
The  applicant  reported  to  Station  Xxxxxx  on  October  28,  2006.    Before  reporting,  he 
called the station and asked for more leave to arrange for child care.  This request was denied 
because he could not show that he had custody of his child.  The next day he called and asked for 
more leave again, stating that he could not fly to New York because of a sinus infection.  This 
request was also denied. 
 
The applicant was granted leave for six days from December 18 to 23, 2006, and he went 
 
home to Xxxxxx.  On December 21, 2006, he checked himself into a hospital complaining of 
depression and suicidal thoughts.  However, he told his command that he was undergoing eye 
surgery. 
 

In the hospital, the applicant was diagnosed with “likely trigeminal neuralgia” resulting 
from a recent car accident, although MRI and CT scans did not show any injuries.  The doctor 

prescribed Prednisone and Tegretol for symptomatic relief.  Upon his release from the hospital 
on December 24, 2006, the applicant was granted leave through January 25, 2007, because he 
was  supposed  to  attend  ten  follow-up  sessions  at  the  hospital  and  the  last  such  session  was 
scheduled  for  January  24,  2007.    However,  the  command  learned  that  the  applicant  skipped 
many of the ten follow-up sessions.   
 

On January 26, 2007, the applicant was declared a deserter after he refused to and failed 
to return to the station.  His commanding officer (CO) noted in his report that during telephone 
calls, the applicant had repeatedly expressed his intention not to return to his unit.  The applicant 
did not tell the command, as he later alleged, that he was bedridden or that a doctor had ordered 
him not to travel. 
 
 
On February 5, 2007, the CO reported that the applicant had surrendered himself to his 
hometown police department on January 30, 2007, and that he had been returned to military con-
trol and escorted back to Station Xxxxxx on February 2, 2007.  Upon the applicant’s return, he 
was  sent  to  the  Coast  Guard  Academy  for  a  medical  examination  by  Dr.  P  and  a  psychiatric 
examination by Dr. T.  The applicant told the psychiatrist that he wanted to be discharged.  Dr. P 
found the applicant fit for full duty. 
 
 
On February 23, 2007, the CO placed the applicant on probation and documented this 
action on a Page 7, which the applicant refused to sign in acknowledgement.  The Page 7 states 
the following: 
 

While on leave during the holiday season you took it upon yourself to seek medi-
cal  treatment,  exaggerating  symptoms  and  statements  to  include  suicidal  com-
ments in an effort to get discharged from the U.S. Coast Guard.  These false pre-
tenses continued until the end of January at which time you were ordered to return 
to this unit so you could be seen by military medical providers at the U.S. Coast 
Guard Academy.  You disobeyed the order to return to United States Coast Guard 
Station Xxxxxx.  A warrant for your arrest was issued to local law enforcement 
authorities  for  desertion  in  your  home  town  of  xxxxxxxxx,  Xxxxxx.    We  were 
notified of your detainment and sent two law enforcement qualified petty officers 
to pick you up and escort you back to the area.  Within a few days of your return 
to New York, you were seen by medical professionals at the Academy and were 
determined to be both physically and mentally sound. 
 
I find your dishonesty, lack of devotion to duty and shipmates disturbing.  You 
were one month overdue on your communications qualification.  You have failed 
to qualify as a boat crewmember.  You have disrespected a senior Petty Officer as 
documented on previous administrative remarks.  Your inaptitude will no longer 
be tolerated.  When  an individual joins the military they  do so with the  under-
standing that they must fulfill their obligation to the service.  You need to take 
stock in your actions on and off duty.  You must become a productive member of 
the unit and United States Coast Guard, or you will be recommended for adminis-
trative discharge. 

 

 
On March 22, 2007, a preliminary investigation officer (PIO) reported to the CO that in 
conducting his investigation, he had advised the applicant of the charges against him and of his 
Miranda/Tempia rights, but the applicant had refused to sign the form acknowledging the advice.  
Therefore, the PIO had been unable to question the applicant, who refused to submit a statement.   
 

The PIO stated that his investigation had revealed that the applicant had falsified his SF-
86 form, on which he certified that he had not been more than 180 days delinquent in paying a 
debt, when in fact he had “been delinquent on multiple debts for well over 180 days.”  Therefore, 
the PIO concluded that the applicant had violated Article 107 of the Uniform Code of Military 
Justice (UCMJ) by making a false official statement.  In addition, the PIO concluded that the 
applicant  had  been  absent  without  leave  (AWOL)  from  January  26  to  February  2,  2007,  and 
refused to comply with an officer’s request that he return to his assigned duty station, Station 
Xxxxxx.  The PIO noted that the applicant had had ample opportunity to satisfy the request to 
return to his duty station of his own free will but refused.  Therefore, the PIO concluded that the 
applicant had violated Article 85 of the UCMJ by deserting.  He recommended that the applicant 
be taken to mast for non-judicial punishment (NJP). 
 
 
consulted an attorney and refused to sign the charge sheet. 
 
 
On May 3, 2007, the applicant saw a psychologist, who reported that the applicant was 
“suffering  from  what  appears  to  be  a  debilitating  chronic  pain  syndrome.    In  my  opinion,  he 
needs to be seen by a pain specialist and also likely needs a Physical Evaluation Board as he does 
not appear to be fit for full duty.”  The CO ordered the applicant to gather all of his medical 
records and submit them to the Academy clinic in preparation for a physical examination. 
 

On March 29, 2007, the applicant was formally charged with desertion.  The applicant 

In early May 2007, after the applicant complained to his congressman about the charges 
against him, his CO prepared a long statement concerning the applicant for the Coast Guard’s 
congressional liaison.   

 
On May 22, 2007, following a physical examination at the Academy clinic, Dr. P referred 
the  applicant  to  the  psychiatrist,  Dr.  T,  “for  c/o  [complaints  of]  severe  facial  pain  and  hx 
[history] of SI [suicidal ideations].   Pt [patient] has admitted malingering in past and wants to be 
discharged from USCG.  Pt with dramatic symptoms in past that have resolved during OP [out-
patient]  visit.    Please  eval  for  psychiatric  diagnosis.  …  Provisional  diagnosis:    facial  pain  ? 
malingering vs. conversion d/o [disorder].” 

 
Also on May 22, 2007, the applicant was advised in writing on a Page 7 (form CG-3307) 
that he was 14 pounds overweight and had 2% excess body fat.  The applicant was required to 
make a fitness plan and participate in mandatory fitness activities and regular weighings.  He was 
advised that if he failed probation, he would be recommended for separation. 

 
On June 6, 2007, the applicant refused to accept mast.  Therefore, the charges against him 

were preferred for a special court-martial.   

 

On June 12, 2007, the applicant underwent a psychiatric evaluation.  The applicant told 
the psychiatrist that in November 2006, his car hit a deer, and he thereafter experienced left-side 
facial pain, which persisted.  However, the results of MRI and CT scans had been normal.  The 
applicant told the psychiatrist that he wanted to get out of the Coast Guard and that no one cared 
about him.  He said he was able to sleep only about three hours each night and that prescriptions 
for Lunesta and Valium had not helped him to sleep.  He said that he had considered suicide 
three times in November and December 2006 and had checked himself into a psychiatric hospital 
while on leave in Xxxxxx in December 2006 because he was alarmed by his suicidal thoughts.  
He denied current suicidal ideations or feelings  of depression.  The applicant reported having 
“occasional nightmares of the motor vehicle accident, but no other symptoms of post-traumatic 
stress disorder.”  The records of the hospitalization showed diagnoses of “rule out [i.e., possible] 
atypical depression with chronic pain and rule out somatization disorder, as well as alcohol abuse 
and occupational stress.”  The applicant claimed that he had stopped drinking alcohol on June 4, 
2007.  The applicant told the psychiatrist that he had been diagnosed with trigeminal neuralgia 
(facial pain) and had seen a pain specialist and been prescribed 16 different pain medications, 
including  Tegretol,  hydrocodone  (Oxycontin),  ibuprofen,  Vicodin,  Percocet,  Valium,  Ultram, 
Lortab, and Celebrex, none of which had helped.  He had recently been taking duloxetine (Cym-
balta) for his pain, but stopped on June 8, 2007, because he thought it was causing acne.   

 
The  psychiatrist  reported  that  he  did  not  think  that  the  applicant  met  “the  criteria  for 
malingering, conversion disorder, a psychological pain disorder, or a factitious disorder.  He has 
been prescribed multiple medications and yet his pain persists.  He does not desire further pain 
medication.  He was suicidal in December 2006 in the context of the pain, but he did not make 
an attempt and he instead checked himself into the hospital.  His present suicide risk is low if he 
is discharged from the Coast Guard, but he will be at significant risk for suicide if he remains in 
the Coast Guard. … His failure to adjust to the Coast Guard is most consistent with a personality 
disorder.”  The psychiatrist diagnosed the applicant with “Personality Disorder NOS (Not Oth-
erwise  Specified).”    The  psychiatrist  noted  that  the  psychologist  had  recommended  a  medical 
board for the applicant’s chronic pain but recommended the following instead: 

 
1.  This member has a longstanding Personality Disorder that existed before he 
entered the Coast Guard and will not likely improve or remit with available mili-
tary mental health treatment.  The Personality Disorder renders him unsuitable for 
Coast  Guard  service  in  any  capacity.    I  respectfully  recommend  that  his  Com-
mand initiate an expeditious administrative separation for Personality Disorder.  If 
he is retained in the military, he will be significant ongoing risk for harming him-
self or for suicide. 
 
2.  Follow-up with me is not indicated nor desired by the member, but he is aware 
that he may contact me for follow-up if desired. 
 
3.  I recommended the use of Effexor or gabapentin for pain, but he declined.  He 
is mentally competent to weigh the risks and benefits of taking or not taking pain 
medication. … 
 

On July 13, 2007, the applicant was advised that he had been charged with two counts of 
making a false official statement in addition to the charge of desertion.  The new charges con-
cerned (1) a form that he had signed upon enlistment certifying that he had no debts that were 
more than 90 days delinquent when in fact collection agencies were pursuing him for debts total-
ing many thousands of dollars and (2) a statement he made to a supervisor in 2006 to the effect 
that he was being discharged from the Coast Guard for medical reasons, which was false. 
 
On July 23, 2007, the CO notified the applicant in writing that because he had failed to 
 
attain the weight or body fat standards during his weight probationary period, he would be dis-
charged.  He advised the applicant that he had a right to submit a statement on his own behalf.  
The applicant acknowledged this notification, indicated that he did not object to the proposed 
honorable discharge, and waived his right to submit a statement. 
 

On July 23, 2007, the CO sent to the Personnel Command, by way of the Sector and Dis-
trict Commands, a recommendation that the applicant receive an honorable discharge for failing 
to comply with the Service’s weight standards because he had failed weight probation.  The CO 
noted that the applicant was also awaiting trial by special court-martial and that any “discharge 
would be held in abeyance until proceedings are concluded.  Depending outcome of his court-
martial a request for general discharge may be made.” 

 
On August 28, 2007, the Sector Commander forwarded the CO’s discharge recommen-
dation and recommended that it be approved as of December 15, 2007, to allow adequate time 
for the applicant’s pending court-martial.  He noted that the applicant had been placed on weight 
probation on May 22, 2007, and that the end date of the weight probationary period was August 
28, 2007, but that the CO had properly initiated the applicant’s discharge before the end of the 
probationary  period  because  the  applicant  had  gained  another  15  pounds,  instead  of  losing 
weight, and was 6% over the maximum body fat standard. 
 
 
On September 4, 2007, the CO advised the applicant that he had initiated the applicant’s 
administrative OTH discharge for misconduct based on the charges against him.  The CO noted 
that the applicant had a right to an Administrative Separation Board (ASB) and that an OTH dis-
charge could only be awarded if recommended by the ASB or if the applicant opted to waive his 
right to an ASB.  He also advised the applicant that an OTH discharge would deprive him of 
many or all of his rights as a veteran and cause him to encounter substantial prejudice as a civil-
ian. 
 
On September 18, 2007, after consulting an attorney, the applicant signed an acknowl-
 
edgement of the OTH discharge notification.  He acknowledged that he had a right to an ASB 
and to be represented by counsel.  He waived his right to an ASB and also waived his right to 
submit a statement on his own behalf. 
 
 
On October 19, 2007, the CO sent the Personnel Command, by way of the Sector and 
District Commands, a recommendation that the applicant receive an OTH discharge for miscon-
duct because he had committed a serious offense.  The CO wrote the following: 
 

2.  [The applicant] departed to his home in Xxxxxx on regular leave on the 18th 
of December 2006.  He was scheduled to return on 24 December 2006.  When he 
did not return at the scheduled time, we initiated action to locate [him].  Through 
our efforts, we determined that [he] had checked himself into a behavioral medi-
cal treatment facility on the 21st of December 2006, and was discharged on the 
26th of the same month.  The medical staff of SFO Xxxxxx became involved in 
the case and followed his treatment.  On the 24th of January 200[7], [the appli-
cant] was discharged from his outpatient program.  His discharge paperwork was 
reviewed by medical staff at the CG Academy, and it was recommended that [he] 
return to his unit to continue treatment in the local area.  It was at this time [the 
applicant] was ordered by [LCDR T] (Supervisor, SFO Xxxxxx) to return to his 
unit.  He refused to return.  Based on his admission that he would not be return-
ing, we initiated DD Form 553 (Deserter/Absentee wanted by the Armed Forces).  
[The  applicant]  subsequently  turned  himself  into  the  xxxxxxxxxx,  xx  police 
department and was turned over to Coast Guard escorts from Station Xxxxxx.  He 
ultimately returned to the unit on the 2nd of February, 2007. 
 
3.    During  the  following  weeks,  the  member’s  medical  status  was  further  eva-
luated by CG Academy medical staff.  Additionally, the member was placed on 
report for violation of Article 85 – Desertion.  It was our intention to ensure that 
the member continued to receive medical attention, as well as conduct an investi-
gation into the events surrounding his alleged desertion.  The recommendation of 
[Coast Guard Investigative Service (CGIS) officer’s] investigation was to dispose 
of the matter through Captain’s Mast.  The member refused to sign the Acknowl-
edgement  of  Rights  –  Acceptance  of  NJP.    The  matter  was  referred  to  District 
One legal to process a Special Court Martial.  A Memorandum of Pretrial Agree-
ment was drafted; however, the member refused to acknowledge or sign that doc-
ument as well. 
 
4.  After conferring with District Legal Staff, we feel it is in the best interest of 
the Coast Guard to pursue a misconduct discharge of [the applicant] vice going 
through the Court-Martial process.  I, as well as my staff, have spent numerous 
hours on the administration of this case, and feel everyone will be best served by 
[his] expeditious discharge. 

 
 
On October 30, 2007, the Sector Commander forwarded the CO’s recommendation and 
agreed that the applicant should receive an OTH discharge.  He stated that during the applicant’s 
short time in the Service he had made “several choices that reflect his inability [to] remain in the 
Coast Guard” and cited the applicant’s “refusal to return to his assigned unit following an autho-
rized trip home.”  The Sector commander reported that “[t]hroughout the trial by court martial, 
[the applicant] has continued his refusal to sign necessary documents (often at the last minute), 
and as a result has drawn out the processes to unnecessary lengths.”  The Sector commander also 
noted that the applicant was unable to maintain the Service’s weight standards. 
 

The District Commander also concurred with the recommendation for an OTH discharge.  
He stated that the investigation contained clear evidence that the applicant had committed the 

offense of desertion. As the Officer Exercising General Court-Martial Jurisdiction over the appli-
cant, the District Commander directed that the trial proceedings be held in abeyance pending the 
outcome of the CO’s discharge request.  He noted that the charges against the applicant were 
punishable  by  a  punitive  discharge  at  court-martial.    He  also  noted  that  a  separate  discharge 
package was also being processed because of the applicant’s failure to meet the Coast Guard’s 
weight standards. 

 
On  December  7,  2007,  the  Personnel  Command  ordered  that  the  applicant  receive  an 
OTH discharge because of his involvement of a discreditable nature with civil or military author-
ities and receive a JKA separation code denoting separation for a “pattern of misconduct.” 

 
 
On  December  22,  2007,  the  applicant  was  discharged.    His  DD  214  stated  that  he 
received  an  OTH  discharge  for  “misconduct”  pursuant  to  Article  12.B.18.  of  the  Personnel 
Manual.  
 
 
On September 22, 2008, the applicant asked the DRB to upgrade his OTH discharge to 
honorable.  He stated that he had been given 12 days of liberty, came back on time, and never 
went AWOL or deserted.  He alleged that he turned himself into police after hearing that his 
command  had  charged  him  with  desertion.    The  applicant  alleged  that  he  was  overweight 
because he could not exercise properly due to his illness.  He stated that he was trying to get a 
medical board evaluation, but the doctors at the Academy told him that Physical Disability Eval-
uation System (PDES) processing takes 16 to 20 months and that during that time he would still 
have to work at the Station.  The applicant told the DRB that he had been in three car wrecks—
the last one on December 3, 2007—while in the Coast Guard, which limited his ability to work.  
He alleged that his Navy attorney had told him he could not understand “why the Coast Guard is 
pressing  the  charges  [be]cause  you  turned  yourself  in  and  told  about  the  identity  theft.”    The 
applicant stated that he had told Dr. P at the Academy that he wanted to be discharged because 
he  had  been  diagnosed  with  trigeminal  neuralgia  (facial  pain)  by  numerous  neurologists.    He 
stated that he agreed not to contest the OTH discharge so that he could go home and get proper 
medical care, knowing that he could later petition to have his discharge upgraded.   
 
 
On  April  15,  2009,  the  DRB  convened  and  deliberated  the  applicant’s  request  for  an 
honorable discharge.  The DRB reviewed the applicant’s records and “found no basis whatsoever 
to recommend an upgrade in discharge.”  The DRB noted that the applicant’s records revealed “a 
history of being uncooperative and deceitful,” that he had been diagnosed with a personality dis-
order, and that he had “displayed a significant pattern of apathy and misconduct.”  The DRB also 
noted that the applicant had waived his right to an ASB and thereby had accepted his OTH.  The 
DRB noted that although the applicant’s DD 214 stated that he had been discharged for “mis-
conduct,” it should actually state “pattern of misconduct” since he was assigned the JKA separa-
tion code.  This correction was approved by the Commandant on November 30, 2009, and the 
Coast  Guard  issued  a  DD  215  changing  the  applicant’s  narrative  reason  for  separation  from 
“misconduct” to “pattern of misconduct.”  
 
 

 

VIEWS OF THE COAST GUARD 

 

On October 14, 2010, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny relief in this case.  In so doing, he adopt-
ed the findings and analysis provided in a memorandum on the case prepared by the Personnel 
Service Center (PSC).  The PSC stated that after the applicant went AWOL and refused to return 
to his unit, he was declared a deserter.  When his command attempted to punish him at mast for 
desertion  and  for  making  false  official  statements,  the  applicant  refused  NJP.    Therefore,  the 
command referred the charges for trial by special court-martial.  When the legal office drafted a 
“Memorandum of Pretrial Agreement,” the applicant refused to sign or acknowledge it.  There-
fore, the command decided to pursue an administrative discharge for misconduct, rather than a 
special court-martial, and the Sector Commander and District Commander supported this deci-
sion.  Based on their recommendations, the PSC authorized the applicant’s OTH discharge for 
misconduct. 

 
The PSC noted that the Discharge Review Board (DRB) reviewed the case and unanim-
ously found that the applicant’s discharge was proper and equitable.  The PSC concurred with 
the DRB and concluded that the applicant “has failed to substantiate any error or injustice with 
regards to [his] record.” 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On November 24, 2010, the Board received the applicant’s response to the views of the 
Coast Guard.  The applicant alleged that he had not deserted and had timely advised his com-
mand  that  he  was  bedridden  and  unable  to  travel  back  to  the  unit.    However,  his  command 
“snapped,”  charged  him  with  desertion,  and  issued  a  warrant  for  his  arrest.    A  Navy  lawyer 
assigned to advise him told him that it was his right not to sign anything at all, so he opted not to 
sign anything he did not believe was correct.  In support of his allegations, the applicant submit-
ted the following: 
 

•  A page of his CO’s undated response to the congressional inquiry, on which the applicant 
indicated  that  he  objected  to  the  CO’s  claim  that  he  had  refused  to  answer  CAPT  T’s 
questions honestly and had refused treatment. 

•  A note from a psychiatrist on the bottom half of a blank blue page bearing the date Janu-
ary 30 (year unreadable), states that the applicant “cannot travel at this time secondary to 
[unreadable].” 

•  A medical note dated May  14, 2007, states that  the applicant should not perform stre-

nuous workouts or work in hot or cold environments for 14 days. 

•  An  undated  test  the  applicant  took  to  qualify  for  the  watch  at  his  unit  shows  that  he 

scored 80% and passed the test. 

 

 

 

 

 
 

APPLICABLE REGULATIONS 

 

Article 12.B.18.b. of the Personnel Manual in effect in 2007 stated that Commander, Per-
sonnel Command could discharge a member for misconduct under certain circumstances, includ-
ing the following: 
 

2.  Pattern of Misconduct. Members may be separated when they have: 

 

a. two or more non-judicial punishments, courts-martial, or civilian convictions or 

a combination thereof within a 2-year period; 

b.  three or more unauthorized absences, each is at least three or more days, within 

c.  six or more unauthorized absences and the total amount is at least six days, 

d.    a  pattern  of  failure  to  contribute  adequate  support  to  dependents  (see  Art. 

a 2-year period; 

within a 2-year period; 

8.M); 

e.  a pattern of failure to pay just debts; [or] 
f.  a pattern of shirking[.] 
 
3.  Commission of a Serious Offense. Commission of a serious offense does not 
require adjudication by non-judicial or judicial proceedings. An acquittal or find-
ing of not guilty at a judicial proceeding or not holding non-judicial punishment 
proceeding  does  not  prohibit  proceedings  under  this  provision.    However,  the 
offense must be established by a preponderance of the evidence. Police reports, 
CGIS reports of investigation, etc. may be used to make the determination that a 
member committed a serious offense. 
 
a.  Members may be separated based on commission of a serious military or civil-
ian offense when: 
 

(1)  The specific circumstances of the offense warrant separation; and 
(2)  The maximum penalty for the offense or closely related offense under 
the UCMJ and Manual for Courts-Martial includes a punitive dis-
charge.  The  escalator  clause  of  Rule  for  Courts-Martial  103(d) 
shall not be used in making this determination. 

 
 
Article 12.B.18.d. states that “Commanding officers shall process all cases in which they 
contemplate a discharge under other than honorable conditions for misconduct as Article 12.B.32 
prescribes.”  Article 12.B.32.a. states that a member whose CO has recommended an OTH dis-
charge has a right to consult an attorney and to appear before an ASB represented by an attorney 
unless the member requests an OTH in lieu of trial by court-martial or waives his right to an 
ASB in writing. 
 
The Separation Program Designator (SPD) Handbook provides the codes entered on dis-
 
charge  forms,  DD  214s,  depending  upon  the  reasons  for  a  member’s  discharge.    It  lists  the 
following codes for misconduct discharges under Article 12.B.18. of the Personnel Manual: 

 

             

Code 
GKA 

Narrative Reason 
for Separation 
Pattern of 
Misconduct 

HKA 

Pattern of 
Misconduct 

JKA 

Pattern of 
Misconduct 

HKM  Misconduct 

HKN  Misconduct 

HKQ  Misconduct 

                                                                                                       
Explanation 
Involuntary discharge approved by recommendation of a 
board resulting from a pattern of misconduct of a discreditable 
nature with civil or military authorities. 
Involuntary discharge directed in lieu of further processing or 
convening of a board (board waiver) resulting from a pattern 
of misconduct of a discreditable nature with civil or military 
authorities. 
Involuntary discharge directed by established directive (no 
board entitlement) resulting from a pattern of misconduct of a 
discreditable nature with civil or military authorities 
Involuntary discharge directed in lieu of further processing or 
convening of a board (board waiver) when a member engages 
in acts of misconduct not otherwise listed. 
Involuntary discharge directed in lieu of further processing or 
convening of a board (board waiver) when member has 
established a pattern of misconduct consisting solely of minor 
disciplinary infractions. 
Involuntary discharge directed in lieu of further processing or 
convening of a board (board waiver) when a member has 
committed a serious military or civilian offense. 

 

 
Chapter 2.C.11. of the Physical Disability Evaluation System (PDES) Manual states the 
following regarding members undergoing concurrent disciplinary action and medical board eval-
uation: 
 

a.  Disability  statutes  do  not  preclude  disciplinary  or  administrative  separation 
under  applicable  portions  of  the  Personnel  Manual,  COMDTINST  M1000.6 
(series). If a member is being processed for a disability retirement or separation, 
and proceedings to administratively separate the member for misconduct, discip-
linary proceedings which could result in a punitive discharge of the member, or an 
unsuspended punitive discharge of the member is pending, final action on the dis-
ability  evaluation  proceedings  will  be  suspended,  and  the  non-disability  action 
monitored by Commander, Coast Guard Personnel Command.  
 
b. If the court martial or administrative process does not result in the execution of 
a  punitive  or  an  administrative  discharge,  the  disability  evaluation  process  will 
resume. If a punitive or administrative discharge is executed, the disability evalu-
ation case will be closed and the proceedings filed in the member’s official medi-
cal record. 
 

 

 

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 by applying to the 
DRB, and his application is timely.2  

The applicant alleged that his OTH discharge is erroneous and unjust because of 
his medical problems, miscommunications, and violations of his rights.  He alleged that he never 
deserted, as his CO alleged.  The Board begins its analysis in every case by presuming that the 
disputed information in the applicant’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 unjust.3  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.”4  

 
2. 

 
3. 

 
4. 

Article 85 of the UCMJ states that a member is guilty of desertion when he “with-
out authority goes or remains absent from his unit, organization, or place of duty with intent to 
remain away therefrom permanently.”5  The preponderance of the evidence in the record before 
the Board shows that in January 2007, the applicant failed to return to his unit at the end of his 
leave and repeatedly stated that he was not going to return to his unit.  There is no evidence sup-
porting the applicant’s claim that he was granted leave from January 26, 2007, until his return to 
military control on February 2, 2007.  Nor is there credible evidence that the applicant was under 
orders  not  to  travel.    In  fact,  the  applicant  was  repeatedly  ordered  to  return  to  his  unit  and 
unreasonably refused to do so.  Therefore, the Board finds that the applicant’s chain of command 
did not err in finding that he had deserted or in charging him with desertion. 

The applicant alleged that his OTH discharge was unjust because of his medical 
problems.  He claimed that he was disabled by debilitating trigeminal neuralgia, and a psycholo-
gist who interviewed him on May 3, 2007, clearly believed his claim.  However, a psychiatrist 
concluded  that  the  applicant  had  a  personality  disorder6  and  recommended  an  administrative 
discharge.  The record further shows that although the applicant was diagnosed with trigeminal 
neuralgia while serving on active duty, he failed to attend all of his follow-up outpatient appoint-
ments after he was released from a hospital, refused treatment and prescriptions for pain medica-
tions  offered  by  Service  physicians,  and  stopped  taking  one  pain  medication  just  because  he 
                                                 
2 33 C.F.R. §§ 52.13 and 52.22. 
3 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)).   
4 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
5 10 U.S.C. § 885 (2008); MANUAL FOR COURTS-MARTIAL UNITED STATES, IV-9 (2008 ed.) 
6  Under Chapter 5.B. of the Medical Manual, personality disorders do not constitute physical disabilities and result 
in administrative discharges from the Service for unsuitability instead of medical discharges or retirements. 

thought it was causing acne.  The record shows that the applicant’s CO believed that the appli-
cant exaggerated his complaints of pain because he wanted to be discharged from the Service, 
and the applicant’s conduct strongly supports the CO’s belief. 

Moreover, under Chapter 2.C.11. of the PDES Manual, members who are, like the 
applicant, being discharged for misconduct either administratively or by court-martial because of 
an offense that could, under the UCMJ, result in a punitive discharge are not entitled to disability 
evaluation and separation under the PDES.  The record shows that the applicant was  charged 
with desertion, in violation of Article 85 of the UCMJ, and with making false official statements, 
in violation of Article 107 of the UCMJ.  The maximum possible punishment under the UCMJ 
for either offense includes a punitive discharge.7  Therefore, because the applicant was being dis-
charged for offenses that could have resulted in his punitive discharge by court-martial, he would 
not have been entitled to disability evaluation and separation under the PDES even if he had been 
found unfit for duty, which he was not. 

The  applicant  alleged  that  his  rights  were  violated  pursuant  to  his  discharge.  
However, the record shows that the applicant received all due process in accordance with Article 
12.B.18. of the Personnel Manual.  Under that article, he was entitled to and received notification 
of the proposed OTH discharge, an opportunity to consult an attorney, an opportunity to submit a 
written statement objecting to the discharge, and an opportunity to appear before an ASB with an 
attorney.  The record shows that he was properly notified of the proposed OTH discharge and 
consulted an attorney but on September 18, 2007, opted to waive his right to appear before an 
ASB as well as his right to submit a written statement objecting to the discharge.  The applicant 
has not proved by a preponderance of the evidence that he was denied any rights with regard to 
his OTH discharge.   

The  CO  recommended  that  the  applicant  be  discharged  for  misconduct  under 
Article 12.B.18. of the Personnel Manual.  The CO specifically noted that the applicant had com-
mitted a serious offense, which is one of the reasons for a misconduct discharge listed in Article 
12.B.18., and detailed the circumstances of his desertion.  However, discharge authority under 
Article 12.B.18. rests with Commander, Personnel Command, who issued orders for the appli-
cant to be discharged for a “pattern of misconduct,” which is another of the authorized reasons 
for a discharge for misconduct listed in Article 12.B.18.  The record contains evidence that the 
applicant did evince a pattern of misconduct while in the Service.  In addition to the charges of 
desertion and making two false official statements, there is evidence that he lied to his command 
about why he did not want to report for duty in October 2006 and about why he was hospitalized 
in December 2006.  There is also evidence that he skipped medical appointments, malingered, 
disobeyed direct orders to return to his duty station, failed to complete work in order to qualify 
for important duties, and showed disrespect to a senior petty officer.  Although the applicant did 
not go AWOL more than once or accept NJP when it was offered, the Board finds that there is 
sufficient  evidence  that  the  applicant  repeatedly  shirked  his  duties  to  support  the  Personnel 
Command’s decision to discharge him for a “pattern of misconduct” under Article 12.B.18. 

 
5. 

 
6. 

 
7. 

 

                                                 
7 10 U.S.C. §§ 885 and 907 (2008); MANUAL FOR COURTS-MARTIAL UNITED STATES, IV-9 AND IV-47 (2008 ed.). 

8. 

Although the applicant has not proved by a preponderance of the evidence that his 
OTH discharge is erroneous or unjust,8 it was documented erroneously on his DD 214.  Under 
the SPD Handbook, the JKA separation code, which the applicant received, applies to members 
who are not entitled to appear before a board before being involuntarily discharged due to a pat-
tern of misconduct.  The applicant was entitled to a board, an ASB, and expressly waived that 
right.  Therefore, his DD 214 should bear the separation code HKA, which is for members being 
discharged for a pattern of misconduct who have waived their right to a board. 

Accordingly,  the  applicant’s  request  should  be  denied  because  he  has  failed  to 
prove by a preponderance of the evidence that his OTH discharge is erroneous or unjust, but his 
DD 214 should be corrected to show the HKA separation code, instead of JKA.  

 
9. 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
8 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).   

ORDER 

 

The application of former SA xxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 
military record is denied except that block 26 of his DD 214 shall be corrected to show the HKA 
separation code, instead of JKA.  

 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 
 
 Reid Alan Cox 

 

 
 Jeff M. Neurauter 

 

 

    
 Julia Doig Wilcox