DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2010-222 
 
Xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxx   

 

 

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 receipt of the applicant’s 
completed application on August 2, 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  April  28,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

The applicant asked the Board to correct his military record by upgrading his general dis-
charge  from  the  Coast  Guard  Reserve  on  December  19,  1994,  to  an  honorable  discharge;  by 
upgrading  his  reenlistment  code  (ineligible  to  reenlist)  to  RE-1  (eligible  to  reenlist);  and  by 
changing his separation code from HKD, which denotes an involuntary discharge when a mem-
ber  has  been  absent  without  leave,  and  his  narrative  reason  for  discharge  from  “Misconduct 
(shirking).” 

 
The applicant stated that after enlisting in the Reserve under the RK program for students 
on March 27, 1990, he began college, performed two satisfactory years of service, received sev-
eral awards, and successfully completed the seaman and MRN-E3 courses for advancement to 
seaman (SN/E-3).  However, in January 1991, he transferred  from a  regular college to Maine 
Maritime  Academy.    Therefore,  in  the  spring  of  1992,  he  was  an  academic  sophomore  but  a 
technical  freshman.    As  such,  in  addition  to  taking  a  full  course  load,  he  had  to  attend  many 
required training activities, such as fire fighting and damage control training and ship-familiari-
zation exercises, to prepare for a 60-day practical training cruise from early May through early 
July, which was required by the Coast Guard for licensing in the merchant marine.   

 
The  applicant  alleged  that  the  numerous  training  requirements  hindered  his  ability  to 
leave campus and travel three hours to drill with his Reserve unit in the spring and summer of 
1992.  Therefore, he used his unit’s “apparently unofficial system of being excused from drill 
exercises,”  in  which  reservists  who  could  not  attend  drill  would  contact  one  of  the  station’s 

senior enlisted members to inform them of the problem and then make up the missed time later, 
often by adding time to the two-week active duty training period.  However, his academic and 
technical  training  workload  did  not  allow  him  to  complete  the  two-week  active  duty  training 
period or to make up missed drills in 1992 because he had to participate in the freshman training 
cruise from early May 1992 to early July 1992 and was then “required to participate in a cooper-
ative education experience from mid-July 1992 through late August 1992, during which [he] was 
employed as an  entry-level mariner  aboard a  commercial towing vessel  operating on the U.S. 
West Coast, in the Pacific Ocean and within the Hawaiian Islands.”  Therefore, the applicant was 
unable to complete his  Reserve obligations during his  anniversary  year  (AY)  from March 27, 
1992, to March 26, 1993.   

 
The  applicant  alleged  that  although  he  had  explained  and  sought  pre-approval  for  his 
inevitable absences, he later learned that his command had simply marked him as absent instead 
of  explaining  to  the  Personnel  Command  why  he  had  been  unable  to  drill  or  perform  annual 
training.  The applicant noted that in light of his condensed training and academic schedule, he 
now believes that someone should have suggested he transfer to the inactive status list. 

 
When  the  applicant  returned  to  the  maritime  academy  in  the  fall  of  1992,  he  resumed 
drilling and drilled regularly from October 1992 through February 1993.  Although he remained 
in  the  Reserve  through  December  2004,  he  “cannot  accurately  document  my  attendance,  or 
potential lack thereof, at drill exercises” after March 1993 because he did not receive a Retire-
ment Points Statement for AY 2004 or 2005.  However, he noted that he was aboard a ship for a 
senior training cruise from late April through mid July 1993.  However, thereafter he would have 
been available to make up for missed drills. 

 
The applicant alleged that in 1994, during a Service-wide reduction in force, he accepted 
an offer of an early discharge without penalty. He alleged that in the documentation he received 
from the Coast Guard, “a general discharge with automatic upgrade to honorable discharge after 
a  6  month(s)  incident-free  probationary  period  was  offered.”    However,  he  had  to  forfeit  any 
remaining educational benefits and return all equipment and gear, if any, to the unit.  There was a 
great deal of legal language, which he cannot remember, but given the opportunity of an appar-
ently  “amicable  dissolution”  of  his  Reserve  enlistment,  he  signed  and  returned  the  papers 
because as a senior at the maritime academy, he had even less available time to leave campus 
than before.  The applicant thereafter believed that his general discharge would be automatically 
upgraded to honorable six months later, and that with an honorable discharge, a merchant mari-
ner license, and a college diploma, he could enter the next phase of his life unencumbered.   

 
The  applicant  stated  that  quite  unexpectedly,  he  eventually  received  a  letter—his  dis-
charge paperwork—dated dated December 19, 1994, “which detailed determinations contrary to 
those I’d been led to believe would materialize.”  The letter included a vague allegation of mis-
conduct “with no explanation other than the word ‘shirking’.”  This letter also noted that he had 
received an RE-4 reenlistment code and an HKD separation code.  The applicant alleged that he 
repeatedly  requested  an  explanation  or  documentation  regarding  “the  near-complete  reversal 
executed by the United States Coast Guard (Reserve)” but learned nothing new.  The applicant 
argued that this reversal from what he had agreed to was unjust.  Therefore, he asked the Board 
to upgrade his discharge and reenlistment code.  He noted that since his discharge, he has com-

pleted  his  bachelor’s  degree,  is  working  on  a  master’s  degree,  and  has  been  a  good  citizen, 
neighbor, and family member.   

 
The applicant stated that he discovered the alleged errors in his record on April 15, 2009, 
when he tried to reenlist and learned that his general discharge had never been upgraded; that it 
had been issued for misconduct (shirking); and that he was unable to reenlist.  
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

On March 27, 1990, while a student at Southern Maine Technical College, the applicant 
enlisted in the Coast Guard Reserve for eight years under the RK program as a seaman appren-
tice.  The Statement of Understanding he signed that day states the following in pertinent part: 

 
1.  …I  understand  that  I  will  be  required  to  participate  satisfactorily  (see  paragraph  5)  in  the 
Selected Reserve until six years from the anniversary of my enlistment.  For the last two years 
of my obligation, I will not be required to participate in the Selected Reserve. … 

I will be ordered to IADT (Phase 1 – recruit training) within 180 days from the date of enlist-
ment.  I will be released in time to meet the convening dates of my education program.  I may 
be required to complete recruit training during the summer. 

 
3.  Upon enlistment, I will be assigned to a Coast Guard Reserve Unit (CGRU) and required to 
participate  satisfactorily  (see  paragraph  5)  in  this  unit  for  at  least  the  first  six  years  of  my 
eight-year obligation.  If I fail to participate satisfactorily I may be discharged, possibly under 
other  than  honorable  conditions,  or  ordered  involuntarily  to  active  duty  for  a  period  of  24 
months… [Paragraph 4. omitted.] 

5.  Satisfactory participation is defined as:  

a. 

successful completion of two phases of IADT.  Phase I  will be recruit  training (at 
least  eight  weeks).    Phase  II  will  be  Class A  school  (at  least  10  weeks).    If  I  am 
unable or unqualified to attend Class A school, Phase II will be on-the-job training 
(at least 12 weeks). … 

b.  Attending at least two single drills each month at my reserve unit in the first period 
between  IADT  phases;  at  least  four  single  drills  between  subsequent  inter-phase 
periods, if any. 

c.  Upon completion of Phase II, attendance at, and satisfactory performance in at least 
48 scheduled drills and at least 12 days ADT each anniversary year until six years 
from the anniversary of my enlistment.  In lieu of this requirement, satisfactory ser-
vice of not more than 30 days active duty each year … 

d.  Satisfactory performance, adaptability, military behavior, and appearance for the full 

term of my enlistment. 

 
From May 22 through July 13, 1990, the applicant attended recruit training and graduated 
with a Basic Training Honor Graduate Ribbon and a Coast Guard Bicentennial Unit Commenda-
tion Ribbon.  He performed 4 drills in August, 8 in September, 4 in November, and 4 in Decem-
ber 1990, as well as 4 drills each in January and March 1991.   

 
The applicant performed 4 drills in April 1991 and then performed active duty for train-
ing from May 12 through August 22, 1991.  He advanced to seaman on September 1, 1991.  He 
also completed 4 drills each in November and December 1991 and 4 drills in January 1992.   

 

 

 
2. 

 

In AY 1993, running from March 27, 1992, to March 26, 1993, the applicant performed 
no active duty for training and 1 drill in October, 4 drills each in November and December 1992, 
and 4 drills each in January and February 1993.  He did not perform any drills or active duty for 
training after February 1993.1 

 
On September 20, 1994, the First District Commander sent the applicant a letter notifying 

him that he had been transferred from the Selected Reserve to the Individual Ready Reserve. 

 
 
On  December  19,  1994,  the  Commandant  responded  to  a  letter  from  the  First  District 
Commander, dated October 17, 1994, and authorized the applicant’s general discharge “by rea-
son of misconduct (shirking)” with an HKD separation code and an RE-4 reenlistment code. 
 
 
ing) with an HKD separation code and an RE-4 reenlistment code.   
 

On December 19, 1994, the applicant received a general discharge for misconduct (shirk-

VIEWS OF THE COAST GUARD 

 
 
On November 15, 2010, the Judge Advocate General (JAG) submitted an advisory opin-
ion in which he recommended that the Board deny the requested relief.  In so doing, he adopted 
the findings and analysis provided in a memorandum on the case prepared by the Personnel Ser-
vice Center (PSC).   
 
 
The PSC stated that the application is untimely since the applicant could have applied for 
an honorable discharge when the Coast Guard failed to upgrade it within six months of his dis-
charge, as he alleged he expected.  The PSC stated that the applicant never applied to the Dis-
charge Review Board and recommended that the Board not “excuse the applicant’s gross untime-
liness in this case.” 
 
 
The  PSC  stated  that  the  Statement  of  Understanding  shows  that  the  applicant  was 
informed of the participation requirements when he enlisted in 1990.  The PSC noted that the 
applicant’s  participation  was  satisfactory  during  his  first  two  years,  AY  1991  and  1992  but 
unsatisfactory  thereafter.    The  PSC  stated  that  under  Article  4.B.2.a.3.  of  the  current  Reserve 
Personnel  Manual,  it  is compulsory  to  separate  a  seaman  after  two  consecutive  unsatisfactory 
years.  The PSC noted that the record contains the Commandant’s discharge orders in response to 
the request of the First District Commander.   
 

Thus, the PSC concluded that the record supports the applicant’s general discharge for 
shirking  and  noted  that  his  military  records  are  presumptively  correct.    In  addition,  the  PSC 
argued that there is nothing in the record that substantiates the applicant’s claim that he was dis-
charged pursuant to a reduction in force or that his general discharge should have been upgraded 
six months  after  his  separation.    Therefore,  the  PSC  recommended  that  the  Board  deny  relief 
because the applicant “has failed to substantiate any error or injustice with regards to his record.” 
                                                 
1 The applicant’s Leave and Earnings Statement for September 1993 states that he had completed only 17 drills in 
fiscal year 1993, which began on October 1, 1992.  His Retirement Point Statements show that the 17 drills were all 
performed before February 1993.  His Leave and Earnings Statements from September 1993 through August 1994 
show that he performed no more drills. 

  

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On December 22, 2010, the applicant responded to the views of the Coast Guard.  The 
applicant alleged that his application is timely because the Coast Guard failed to notify him in 
1994 that his discharge had been classified as general in perpetuity. 
 
The applicant repeated his allegations about how his academic obligations interfered with 
 
his prior commitment to serve in the Reserve and about his unit’s informal system of explaining 
absences from drill and making them up at a later date.  He stated that since he enlisted under the 
RK program, which was designed expressly for students, the Coast Guard should have expected 
that some students might be unable to fulfill their Reserve obligations.  In addition, he alleged 
that the Coast Guard did not fulfill its obligations to him because, while he was led to believe 
that he would be exposed to all of the various opportunities the Coast Guard had to offer, during 
his first year, he was assigned to perform menial tasks and participate in classroom discussions at 
a large shore unit, and  he was not assigned to  a small boat station until he requested it.  The 
applicant also noted that only 50 points are required for satisfactory participation and he earned 
well more than 50 points during his first two years in the Reserve. 
 

The  applicant  also  repeated  his  allegations  about  having  been  offered  an  early  general 
discharge, pursuant to a reduction in force, that would automatically be upgraded to honorable.  
He stated that he did not receive information about his discharge until “many months after-the-
fact,” when he had already graduated from the academy and that his general discharge came “as 
a complete surprise, especially given the previous discussions and agreement(s).”  The applicant 
stated that he did not fully understand that the determination that he would receive a general dis-
charge was final. 
 

APPLICABLE REGULATIONS 

 
 
Articles  4-A-1  and  4-B-1  of  the  Reserve  Administration  and  Training  Manual  (RAT-
MAN) in effect in 1994 provided that members in the RK program with less than two years of 
active duty were required to attend a minimum of 90% of their 48 scheduled drills each anni-
versary year and at least 12 days of ADT.  Article 4-C-2 stated that failure to meet the participa-
tion requirements in Article 4-A-1 or Article 4-B-1 constituted “unsatisfactory participation.” 
 
 
Article 4-C-3 stated that COs should monitor reservists’ participation and counsel them to 
correct deficiencies.  Article 4-E-1 stated that, when a member in the RK program with less than 
two years of total active duty failed to attend drills in response to counseling about unsatisfactory 
participation, the CO should initiate the member’s discharge for misconduct.   
 
 

 

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. 

The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without 
a hearing.  The Board concurs in that recommendation.2   

1. 
 
2. 

 
3. 

 
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 alleged that he  discovered the errors in his 
record in 2009 when he tried to reenlist.  However, the Board finds that the preponderance of the 
evidence shows that the applicant knew in 1994 that he had received a general discharge.  There-
fore, his application is untimely. 
 

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.”3   

4. 

Regarding the delay of his application, the applicant alleged that he thought that 
his discharge had been automatically upgraded to honorable six months after his discharge and 
that he did not realize that it had not been upgraded until he tried to reenlist in 2009.  The Board 
finds that the applicant’s explanation for his delay is unconvincing.  According to him, the Coast 
Guard  announced  a policy  of awarding members general discharges and then doing all of the 
paperwork to upgrade those discharges six months later if the applicant’s conduct was “incident-
free,” which would have required the Coast Guard to conduct post-discharge background checks 
on all of the members discharged under the policy.  The Board does not believe that the Coast 
Guard ever announced or adopted such a policy.  Moreover, even if for imponderable reasons the 
Coast Guard actually did announce such a policy, the applicant would have expected to receive 
an honorable discharge certificate in the mail sometime in 1995 and could have filed his com-
plaint  when  he  did  not.    The  applicant  has  failed  to  show  that  anything  prevented  him  from 
seeking correction of the alleged errors and injustices in his record more promptly. 

                                                 
2 See Steen v. United States, No. 436-74, 1977 U.S. Ct. Cl. LEXIS 585, at *21 (Dec. 7, 1977) (holding that “whether 
to grant such a hearing is a decision entirely within the discretion of the Board”); Flute v. United States, 210 Ct. Cl. 
34,  40  (1976)  (“The  denial  of  a  hearing  before  the  BCMR  does  not  per  se  deprive  plaintiff  of  due  process.”); 
Armstrong  v.  United  States,  205  Ct.  Cl.  754,  764  (1974)  (stating  that  a  hearing  is  not  required  because  BCMR 
proceedings are non-adversarial and 10 U.S.C. § 1552 does not require them).  
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).   

6. 

A cursory review of the merits of this case indicates that the applicant has submit-
ted  insufficient  evidence  to  overcome  the  presumption  of  regularity.4   The  record  contains  no 
evidence that substantiates the applicant’s allegations of error or injustice in his official military 
record, which is presumptively correct.5  For example, there is no evidence supporting his allega-
tions of excused absences, of an offer of an early discharge under a reduction in force, or of a 
promise  that  his  general  discharge  would  be  automatically  upgraded  six  months  after  his  dis-
charge.  The applicant’s Retirement Point Statements and Leave and Earnings Statements show 
that he failed to perform satisfactorily after March 1992 and that he performed no drills or active 
duty for training at all after February 1993.  Therefore, his discharge for misconduct (shirking) 
under Article  4-E-3  of  the  RATMAN  in  December  1994  is  supported  in  the  record.    In  this 
regard, the Board notes that although the applicant was apparently kept busy with his studies and 
training to become a merchant mariner, he clearly did not fulfill his commitment to the Coast 
Guard Reserve.  The Board also notes that under the Separation Designator Code Handbook, an 
RE-4  code  is  the  only  reenlistment  code  authorized  for  members  discharged  for  misconduct.  
Therefore, the Board finds that the applicant’s claim cannot prevail on the merits. 

 
7. 

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]

                                                 
4 Under the Board’s rules, 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.  33 C.F.R. § 52.24(b).     
5 Id.; see Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992) (citing Sanders v. United States, 594 F.2d 
804, 813 (Ct. Cl. 1979), for the required presumption, absent evidence to the contrary, that Government officials 
have carried out their duties “correctly, lawfully, and in good faith.”). 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, for correction of his 

ORDER 

 

 
 

 
 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 

 

 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 
Anthony C. DeFelice 

 

 

 
Peter G. Hartman 

 

 

 
Vicki J. Ray