DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-247 
 
Xxxxxxxxxxxxxxxxx 
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 after receiving the applicant’s 
completed application on September 7, 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). 
 
 
ed members who were designated to serve as the Board in this case. 
 

This final decision, dated June 3, 2011, is approved and signed by the three duly appoint-

APPLICANT’S REQUEST AND ALLEGATIONS  

 

 
 

 

 

 

The  applicant  asked  the  Board  to  correct  his  military  record  by  upgrading  his  general 
discharge from the Coast Guard Reserve for “shirking” on October 29, 1976, to an honorable 
discharge.  The applicant alleged that he had to resign from the Reserve because his work as a 
police officer conflicted with his Reserve duties.  His civilian supervisor gave him the choice of 
losing his job or quitting the Reserve so he had to quit.   

 
Regarding the delay in his request for relief, the applicant alleged that he discovered the 
alleged error in his record on August 12, 2010.  On that date, he alleged, he learned that he could 
seek to have his discharge upgraded.  
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

The applicant was a cadet at the Coast Guard Academy from July 2, 1971, until Novem-
ber 13, 1972, when he resigned.  On March 9, 1973, he enlisted in the Reserve for six years and 
agreed to drill regularly and perform two weeks of annual active duty for training (ADT) for five 
years.    The  applicant  drilled  regularly  and  performed  ADT  during  his  first  anniversary  year, 
ending on March 8, 1974.  During his second anniversary year, from March 9, 1974, to March 8, 
1975, the applicant drilled and performed the ADT, but was absent for drills in June, October, 
and November 1974.  During his third anniversary year, from March 9, 1975, to March 8, 1976, 
the  applicant  showed  up  for  only  one  weekend  of  drills  in  December  1975,  apparently  in 

response  to  a  counseling  session  held  on  November  22,  1975.    On  that  date,  the  applicant’s 
commanding officer (CO) wrote the applicant a letter to memorialize a counseling session the 
applicant had with the executive officer about the applicant’s failure to drill.  The letter states 
that the CO would refrain from recommending an administrative discharge “by reason of accu-
mulated absences” if the applicant performed 32 make-up drills and 8 regular drills by December 
31, 1975.  The CO wrote that the applicant was being allowed to make up the drills “in recogni-
tion of [his] previous record in the Coast Guard and of [his] career situation which was responsi-
ble for [his] absences.” 
 
 
On February 29, 1976, the applicant’s CO advised the District Commander and the Com-
mandant that the applicant’s “performance and attendance have deteriorated to the point that he 
is no longer a useful member of this unit.”  The CO stated that on November 22, 1975, the appli-
cant had agreed to a plan to make up for 32 absences and to participate regularly but had not 
shown up as agreed.  The CO noted that the applicant had stated that his civilian employment as 
a police officer conflicted with his ability to drill.  The CO stated that the applicant had asked for 
an administrative discharge.   
 
 
The CO included with his recommendation a letter from the applicant dated February 29, 
1976, in which he requested an administrative discharge for hardship.  The applicant explained 
that on February 4, 1975, he had become a full-time police officer and that he had advised his 
Reserve  unit  that  he  would  be  unable  to  drill  during  his  training  at  the  police  academy  from 
March 14 to June 10, 1975.  The applicant stated that after he graduated from the academy, he 
became a patrol officer and was scheduled to work many weekends, which prevented him from 
drilling.  The applicant stated that his shift, which comprised four 10-hour days each week plus 
overtime, changed every four months, and that because more senior officers had preference in 
the assignment of shifts, the applicant’s shift often included weekends.  
 
 
On October 20, 1976, a Reserve administrator wrote a note stating that the CO’s request 
for an administrative discharge had never been processed.  Instead, the applicant had twice been 
offered an alternative drill schedule.  However, he had refused to drill and had agreed to a gen-
eral discharge.  The Reserve administrator also noted that the applicant had been informed of his 
right to consult counsel and had declined the opportunity and stated that he wanted to be dis-
charged.  Therefore, the administrator recommended that “we change our minds from what we 
initially proposed and authorize discharge for shirking.” 
 
 
On October 26, 1976, the Commandant ordered the District Commander to discharge the 
applicant for “misconduct (shirking)” with a general discharge.  October 29, 1976, the District 
Commander discharged the applicant and sent him a general discharge certificate with a letter 
advising him that he had been discharged from the Reserve due to misconduct. 
 

VIEWS OF THE COAST GUARD 

On January 5, 2011, the Judge Advocate General (JAG) submitted an advisory opinion in 

 
 
which he recommended that the Board deny the requested relief.   
 

 
The  JAG  stated  that  the  application  is  untimely  and  should  be  denied  on  that  basis 
because  “he  provides  no  rationale  for  his  approximately  30+  year  delay”  in  applying  to  the 
Board.  The JAG also stated that the applicant had not provided any relevant documentation or 
rationale to support his position that his general discharge should be upgraded. 
 

In recommending denial, the JAG adopted the facts and analysis in a memorandum on 
the case prepared by the Personnel Service Center (PSC).  PSC stated that “[t]here is nothing in 
the applicant’s record to substantiate his claim that he made positive attempts to remain a viable 
asset to the CG Reserve despite his apparent predicament with his employer.  Rather, that appli-
cant’s record only supports that he was given ample opportunity and warnings to remedy his sit-
uation before discharge would be authorized.”  Therefore, PSC concluded, the applicant received 
a general discharge for shirking in accordance with policy and he has failed to substantiate an 
error or injustice in his record. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On January 24, 2011, the applicant responded to the views of the Coast Guard.  He stated 
that it was difficult and embarrassing to read the advisory opinion.  His memory of the events is 
somewhat different, and he does not remember being given options, but he does not doubt the 
records.  However, he clearly recalls that his civilian employer gave him no choice.  He had to 
choose between his job as a police officer and attending Reserve drills.  The applicant stated that 
he remembers enjoying his drills, which involved patrols in Long Beach Harbor, Newport, Cata-
lina Island, Lake Havasu, and the Colorado River.  But after seeing the records, he concluded 
that he “got what [he] asked for and deserved.” 
 

APPLICABLE REGULATIONS 

 
 
Article 12-B-12(b) of the Personnel Manual in effect in 1976 authorized the Commandant 
to  direct  the  discharge  of  an  enlisted  member  for  unfitness  due  to  “an  established  pattern  of 
shirking.”    Article  12-B-12(b)  further  provided  that  such  a  discharge  “will  not  normally  be 
initiated until a member has been counseled concerning his deficiencies and afforded a reasona-
ble opportunity to overcome them.”  Article 12-B-12(a) stated that an enlisted member “may be 
separated  by  reason  of  unfitness  with  an  undesirable  discharge,  unless  the  particular  circum-
stances in a given case warrant a general or honorable discharge.  Discharge by reason of unfit-
ness and the type of discharge to be issued will be directed only by the Commandant.”  
 

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. 

1. 
  

2. 

An application to the Board must be filed within three  years after the applicant 
discovers the alleged error in his record.1  The applicant received his general discharge in 1976.  
Therefore, his application was untimely. 

4. 

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.”2 
 

The applicant stated that he did not previously apply to the Board because he was 
unaware of its existence.  This explanation is not compelling as nothing prevented the applicant 
from complaining about his general discharge and discovering the existence of the Board sooner 
if he believed his discharge was erroneous or unjust.     
 
 
A cursory review of the case indicates that it lacks potential merit.  Although the 
applicant’s  civilian  employment  as  a  police  officer  interfered  with  his  attendance  at  regular 
weekend drills, according to the Reserve administrator’s letter dated October 20, 1976, the Coast 
Guard  tried  to  accommodate  him,  to  no  avail,  by  offering  alternative  drill  schedules.    The 
applicant’s Retirement Points Statements support the Coast Guard’s decision to discharge him 
because  of  an  established  pattern  of  shirking.    Under  33  C.F.R.  § 52.24(b),  the  applicant’s 
military  records  are  presumptively  correct,3  and  he  has  not  submitted  sufficient  evidence  to 
overcome  the  presumption.    Therefore,  the  Board  finds  that  his  claim  cannot  prevail  on  the 
merits. 

5. 

Accordingly, the Board will not excuse the application’s untimeliness or waive the 

statute of limitations.  The applicant’s request should be denied.  
 
 

 

 
3. 

 
6. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

                                                 
1 10 U.S.C. § 1552(b).   
2 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992). 
3 33 C.F.R. § 52.24(b); 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 Gov-
ernment officials have carried out their duties “correctly, lawfully, and in good faith.”).   

  

ORDER 

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

 

 
 

 
 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 Andrew D. Cannady 

 

 

 
 Nancy L. Friedman 

 

 

 
 Dorothy J. Ulmer