DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-040 
 
Xxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxx   

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 December 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  July  14,  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  February 
12, 2004, bad conduct discharge (BCD).  The BCD was part of his sentence following his Sep-
tember 21, 2001, conviction by a special court-martial on three counts:  conspiring to wrongfully 
distribute ecstasy, an illegal drug, on or about July 22, 2001, in violation of Article 81 of the Uni-
form Code of Military Justice (UCMJ); wrongfully using ecstasy on divers occasions from July 
20 to  23, 2001, in  violation  of Article 112a of the UCMJ; and wrongfully  procuring his  enlist-
ment  by  knowingly  making  a  false  representation  when  he  enlisted  on  January  30,  2001,  in 
violation of Article 83 of the UCMJ.  The applicant alleged that he discovered the injustice in his 
record in August 2008 because before then he “did not know [he] had an opportunity to correct 
[his] life.” 

 
The applicant asked the Board to upgrade his BCD based on his post-discharge conduct.  

He stated that he truly regrets and repents of his misconduct and has become a responsible citi-
zen, enrolled in college, and established a business with the help of his family.  In addition, he is 
“a  very  active  participant  in  several  organizations  that  counsel  users  of  controlled  substances.”  
He  has  been  the  xxxxxxxxxxxxx  Youth  Clubs,  President  of  the  xxxxxxxxxxx  Club,  Vice 
President of xxxxxxxxxxxxxxxxxxxxxxx, and a member of the Puerto Rico xxxxxxxxxxxxx.  In 
support  of  these  allegations,  the  applicant  submitted  several  documents  and  statements  from 
people who know him, including the following: 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

  A certificate from the Police of Puerto Rico stating that the applicant has no penal record. 

  A pamphlet  and  certificate show that the  applicant  is  an active member  of the xxxxxxx 

Club. 

  Another  pamphlet  shows  that  the  applicant  served  on  a  committee  for  a  university 

reforestation project called xxxxxxxxxxxxxxxxxxxxxxxxx. 

  Certificates show that the applicant was on the Dean’s List at  a university and studying 

xxxxxxx. 

  Letters show that the applicant was employed at hotels from January 17, 2003, through at 

least August 17, 2004, and from January 2007 to July 2008. 

  A letter dated February 1, 2009, thanks for the applicant for his generosity toward a home 

for pregnant teens. 

  A letter from the applicant’s brother, who is a sergeant on active duty xxxxxxxxxxxxxxx, 
states that the applicant has learned from his past mistakes, has skills that would be useful 
in the military, and deserves a second chance. 
 

  A  letter  from  the  applicant’s  father,  president  of  xxxxxxxxxxxxx,  states  that  his  son 
works for him and has demonstrated responsibility, respect, and willingness to work hard.  
The letter states that his son has continued to grow and learn and has become an admira-
ble person. 

  A letter from an assistant professor at the applicant’s university states that the applicant is 
a bright, dedicated, and resourceful student and “an outstanding human being … a posi-
tive role model.” 

  A letter from  a priest states that the applicant  is a stable and capable person who “does 
not deserve this discharge.  His penitence is over.  He already paid for his sins.  His atti-
tude is by no means [that] of an active addict.  He behaves correctly in every atmosphere, 
he’s studying  xxxxxxx in Puerto Rico with  good grades, and he  also  helps addicts who 
are struggling and helps take them off the streets.  I use him on my duties when I have to 
give  people  treatment  as  well  as  an  example  of  perseverance  and  change  for  at  risk 
youths.” 

  A letter from a former patient at a rehabilitation center states that he met the applicant in 
2005,  when  the  applicant  came  to  the  center  to  help  counsel  people,  and  the  applicant 
thereafter visited him regularly and gave him a place to stay when he left the center.  The 
former  patient  stated  that  he  has  been  clean  for  three  years  and  attributed  this  achieve-
ment to the applicant’s efforts and example. 

  A  letter  from  a  hospital  praises  the  applicant  for  helping  to  show  young  patients  that 

people can overcome drug and alcohol addictions. 

 

 

 

 

  A  letter  from  Narcotics  Anonymous  states  that  the  applicant  has  been  active  in  the 

fellowship and been clean and sober for many years. 

  A letter from  a university adviser thanks the applicant for his help with the university’s 

drug and alcohol abuse prevention week. 
 

  A  Summary  of  Indebtedness  shows  that  when  he  was  released  from  confinement,  the 
applicant  owed  the  Coast  Guard  $3,878.81,  and  Statements  of  Indebtedness  shows  that 
$50 was debited from his bank account each month until he owed just $16.95 on Septem-
ber 25, 2009. 
 

  A  U.S.  Navy  certificate  shows  that  during  his  confinement  in  2002,  the  applicant  com-

pleted a Cook in Training program. 
 

  An  unaddressed  invitation  from  the  Presidential  Inaugural  Committee  invites  the  reci-

pient to attend the inauguration of the President on January 20, 2009. 

SUMMARY OF THE RECORD 

 
 
On January 30, 2001, at age 18 (date of birth July 30, 1982), the applicant enlisted in the 
Coast Guard as a seaman recruit (SR/E-1).  Upon enlistment, he certified that he had never used 
any illegal drugs and acknowledged having been counseled about the Service’s drug and alcohol 
policies, including the policy that anyone discharged for drug abuse may receive no higher than a 
general discharge.   
 

After completing boot camp, the applicant was advanced to seaman apprentice (SA/E-2) 
and assigned to attend xxxxxxxx “A” School at the training center in Yorktown, Virginia.  How-
ever, he was disenrolled from “A” School on May 16, 2001, for cheating on an examination and 
so became ineligible for further training for one  year.    Although disenrolled, the applicant  was 
still  serving  in  Yorktown  when  he  incurred  an  alcohol  incident  that  was  documented  in  his 
record on August 10, 2001, and when he was charged with the offenses for which he was con-
victed  by  special  court-martial  on  September  21,  2001.    His  sentence,  which  was  adjudged  on 
March 5, 2002, included confinement for four months, forfeiture of pay for four months, reduc-
tion to SR/E-1, and the BCD.  The applicant began his confinement on March 5, 2002, and was 
released  on  appellate  leave  on  June  14,  2002,  pending  a  clemency  review.    On  November  10, 
2003,  the  Commandant  denied  clemency  on  the  applicant’s  sentence.    On  December  11,  2003, 
the  Rear  Admiral  with  court-martial  jurisdiction  over  the  applicant  ordered  the  BCD  executed.  
The BCD was executed on February 12, 2004.  
 
 
The  applicant’s  DD  214  shows  that  because  of  time  lost  while  in  confinement  and  on 
appellate leave, the applicant  served one  year, one month, and five days of active service from 
January 30, 2001, to March 4, 2002. 
 
 

 

 

 

VIEWS OF THE COAST GUARD 

 
 
On February 2, 2011, the Judge Advocate General (JAG) submitted an advisory opinion 
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 Service 
Center (PSC). 
 
The PSC noted that the application “is not timely and should be denied due to untimeli-
 
ness.”  In addition, the PSC reviewed the applicant’s records and “concur[red] with the findings 
of  the  special  court-martial  in  their  entirety.”    The  PSC  argued  that  relief  should  be  denied 
because the applicant “has failed to substantiate any error or injustice” in his record. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  February  16,  2011,  the  Chair  sent  the  applicant  a  copy  of  the  advisory  opinion  and 

 
 
invited him to respond within thirty days.  No response was received. 
 

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: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552(a) 
and (f)(2), which authorize the Board to take “action on the sentence of a court-martial for pur-
poses of clemency.” 

 
2. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the  applicant 
discovers  the  alleged  error  or  injustice.1   Although  the  applicant  alleged  that  he  became  aware 
that  he  could  seek  correction  of  his  discharge  in August  2008,  he  knew  that  he  had  received  a 
BCD upon his discharge in 2004.  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.”2  

 
4. 

Regarding the delay of his application, the applicant explained that he did not pre-
viously know that he could seek correction of his BCD.  This explanation is not compelling, but 
the Board notes that the applicant is seeking clemency based largely on how he has used the time 
since his discharge to improve his character and conduct.   
                                                 
1 10 U.S.C. § 1552(b); 33 C.F.R. § 52.22. 
2 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).   

 

 

 
5. 

A cursory review of the merits of the case shows that there is no allegation or evi-
dence  that  the  Coast  Guard  committed  any  error  or  injustice  in  separating  the  applicant  with  a 
BCD.    Instead,  the  applicant  is  requesting  clemency3  under  10  U.S.C.  §  1552(f)  based  on  his 
post-discharge conduct alone.4  Granting clemency by upgrading a discharge may help a veteran 
gain civilian employment and make him eligible for veterans’ benefits for which he is not eligi-
ble with a BCD.5  Past clemency reviews by the Board have determined whether it is appropriate 
to upgrade a punitive discharge based on such factors as the nature and number of the offenses 
committed;  whether  the  applicant  has  performed  other,  honorable  military  service,  combat,  or 
arduous sea duty; the age of the applicant when committing the offenses; how long the applicant 
has  borne  the  burden  of  the  punitive  discharge;  the  amount  of  due  process  provided  the  appli-
cant; any mental illness of the applicant; and how the applicant has spent his time since his dis-
charge.6  In this case, the applicant was very young when he committed his offenses and he has 

                                                 
3  Clemency  means  “kindness,  mercy,  leniency”  and  does  not  require  that  a  sentence  be  erroneous  or  unjust.  
BLACK’S LAW DICTIONARY (5th ed.) 
4  In  1976,  the  delegate  of  the  Secretary  informed  the  BCMR  that  it  “should  not  upgrade  discharges  solely  on  the 
basis  of  post-service  conduct.    The  situation  in  which  a  man  is  granted  a  less  than  honorable  discharge  under 
circumstances all agree were just, and then goes on to become Albert Schweitzer, is one that—if it ever occurs—is 
properly handled by an exemplary rehabilitation certificate or a Presidential pardon. … My point is simply that the 
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.” Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military Records 
(July 8, 1976).  However, in 1983, Congress enacted 10 U.S.C. § 1552(f), expressly authorizing the Board to grant 
clemency  on  sentences  resulting  from  court-martial  convictions.    Military  Justice  Act  of  1983,  Pub.  L.  98-209,  
§  11,  97  Stat.  1393  (1983).  Therefore,  the  Board  does  not  construe  the  1976  guidance  as  prohibiting  it  from 
exercising clemency in court-martial cases. 
5 See U.S. Department of Veterans Affairs, Federal Benefits for Veterans, Dependents and Survivors (2010 ed.), at 
http://www.va.gov/opa/publications/benefits_book.asp. 
6  See,  e.g,  BCMR  Docket  No.  2005-107,  in  which  the  Board  upgraded  a  BCD  to  a  general  discharge  because  the 
applicant was a teenager at the time of his offenses during World War II; because his offenses included only the 29-
day unauthorized absence for which he was sentenced by a GCM, an attempted escape, and the 4-day unauthorized 
absence during his post-confinement probationary period that led to the execution of the BCD; because the applicant 
was not represented by counsel and received significantly less due process than defendants do today; and because 
the sentence was likely more severe than the punishment that might be meted out today for similar misconduct; No. 
2007-144, in which the Board refused to upgrade a 1975 BCD  because, although the applicant had borne the BCD 
for more than 30 years, he was not a teenager when he committed the offenses; he committed several major offenses 
including  assaults  with  dangerous  weapons  and  one  battery  inflicting  grievous  bodily  harm;  and  he  submitted 
nothing to show that his conduct following his discharge from the Coast Guard had been satisfactory; No. 2006-061, 
in  which  the  Board  refused  to  upgrade  a  1944  BCD  because,  although  the  applicant  was  18  years  old  when  he 
committed the offenses, had suffered under the burden of the BCD for a very long time, and may have received less 
due  process  in  1944  than  a  member  in  similar  circumstances  would  today,  he  did  not  prove  that  his  family’s 
situation  required  him  to  be  AOL,  he  provided  no  reasonable  explanation  for  taking  the  apparel  of  others  and 
conspiring  to  steal  an  automobile,  and  he  “was  a  significant  administrative  and  disciplinary  burden  to  the  Coast 
Guard  rather  than  an  asset”  during  his  eight  months  in  the  Service.    For  examples  of  cases  in  which  the  Board 
upgraded BCDs to general discharges under honorable conditions based primarily on the length of time the veteran 
had borne the burden of the BCD and the veteran’s youth at the time of the offense, see BCMR Docket No. 349-89 
(approved  by  the  delegate  of  the  Secretary)  (World  War  II  veteran  with  2  masts  and  2  special  courts-martial  for 
absence offenses); No. 104-89 (1 special court-martial (SCM) for 4 absence offenses totaling 71 days); No. 387-86 
(1 SCM for being absent over leave (AOL) 29 days and missing ship’s movement, and another SCM for being AOL 
2.5 days, theft, and “scandalous [homosexual] conduct”); No. 143-81 (1 SCM for petty theft of camera during boot 
camp); No. 27-81 (1 SCM for 2 periods of  being absent without leave (AWOL) for 9 days and 32 days; 1  general 

 

 

submitted documentation showing that since his discharge, he has attended college; volunteered 
as an addiction counselor and for xxxxx, a service organization; worked at various jobs; and kept 
a  clean  police  record.    On  the  other  hand,  his  misconduct  began  before  he  even  completed 
training, he has no honorable military service, and he performed no sea duty or combat.  Because 
even members whose sole offense is to use an illegal drug receive a general discharge,7 the appli-
cant’s  BCD  for  lying  to  gain  his  enlistment,  conspiring  to  sell  illegal  drugs,  and  using  illegal 
drugs cannot be considered severe.8  In light of these factors, the Board finds that the applicant’s 
request  for  clemency  cannot  prevail  because  his  military  service  and  discharge  should  not  be 
characterized as honorable or under honorable conditions. 

 
6. 

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]

                                                                                                                                                             
court-martial (GCM) for being AWOL 27 days); No. 159-79 (1 mast for neglect of duty; 1 SCM for being AWOL 
for 2 months; 1 GCM for being AOL 75 days); No. 149-79 (2 deck courts for being drunk and disorderly; 3 SCMs 
for being AWOL 59 hours, 20 days, and then 1 day).  For older examples of BCDs upgraded to general discharges, 
see BCMR Docket No. 30 (3 deck courts for minor offenses; one GCM for being AWOL 44 days); No. 42 (1 mast 
for being AWOL 2 days; one GCM for being AWOL 28 days; upgraded on basis of youth (age at enlistment), one 
major offense, and 14 months of sea duty); No. 43 (1 mast for being AOL 2 days; 2 deck courts for being AOL 2 
days and 6 days; one GCM for being AOL 10 days; violation of probation after 7 months of confinement by being 
AOL 11 days; upgraded on basis of extensive sea service “in Northern waters” and 7 months of confinement); No. 
76  (2  masts  for  intoxication  and  for  being  AOL  4  hours;  1  GCM  for  being  AWOL  for  3  days  and  missing  ship’s 
movement;  upgraded  on  basis  of  youth,  possible  battle  fatigue,  and  extensive  sea  duty  in  the  Pacific);  No.  88  (1 
GCM  for  being  AWOL  80  days;  violation  of  probation  by  being  AOL  1  day;  upgraded  on  basis  of  6  months  of 
confinement  and  one  major  offense  following  a  year  of  sea  duty);  No.  93  (2  deck  courts  for  being  AOL  5  and  6 
days; civil trial for petty larceny; 1 GCM for being AOL 15 days; upgraded on basis of 5 months of confinement and 
“us[ing]  his  AOL for a  worthwhile purpose”); No. 100 (1 GCM  for being  AOL 42 days; upgraded on basis of 17 
months of combat duty in Pacific, one major offense, and no probationary period); No. 127 (1 mast for being AOL 
18.5  hours;  3  deck  courts  for  disobedience;  1  GCM  for  disobedience  and  conduct  to  the  prejudice  of  good  order; 
upgraded on basis of youth, inexperience, and lack of probationary period); No. 128 (1 GCM for throwing a wad of 
paper  at  an  officer  and  threatening  to  kill  2  officers  after  one  of  them  used  a  racial  slur  during  a  group  lecture; 
upgraded because “clemency is justifiable”); No. 132 (1 GCM for being AOL 6 days and missing ship’s movement; 
upgraded on basis of immaturity and only one offense); No. 165 (2 masts for being AOL 6 hours and 2 days; 1 deck 
court for being AOL 7 days; 1 GCM for being AOL 9 days and missing ship’s movement; sentenced to reduction to 
SA, confinement for 3.5 years, and BCD; released after 4 months but violated probation by going AOL); No. 196 (1 
SCM for being AOL 26 days; 1 GCM for being AOL 28 days; upgraded because absences were spent working on 
family farm after father was injured in car accident); No. 217 (1 GCM for being AOL and missing ship’s movement; 
sentenced to 6 months at hard labor and BCD; released after 3 months but violated probation by being AOL); No. 
264 (2 masts; 1 SCM; 1 GCM for being AOL 20 days and missing ship’s movement; 2 masts while in confinement 
for yelling “racial discrimination”; no probationary period). 
7 U.S. Coast Guard Personnel Manual, Article 12.B.18.b.4. (2010). 
8 Under the sentencing  guidelines of the UCMJ, the applicant would likely receive a BCD if he were convicted of 
the same offenses today. See MANUAL FOR COURTS-MARTIAL UNITED STATES (2008), Appendix 12, p. A12-1. 

 

 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

his military record is denied.   

ORDER 

 

 

 
 
 Troy D. Byers 

 

 
 Francis H. Esposito 

 

 

 
 Dana Ledger