DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-046 
 
XXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXX 
   

FINAL DECISION 

 
 
This proceeding was conducted according to 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 December 8, 2010, and subsequently prepared the final 
decision for the Board as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  August  18,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  her  record  by  changing  the  reason  for  her 
separation from “unsuitability” to “early release” or “discontinuance of active duty” so that she 
will have an opportunity to enlist in the Army National Guard.  She also asked that the RE-4 (not 
eligible to reenlist) reenlistment code be removed from her record.  The applicant enlisted in the 
Coast Guard on January 8, 1991, and was honorably discharged on September 15, 1992 because 
of unsuitability, 1 with a JMJ2 separation code and an RE-4 reenlistment code.    

 
The  cause  of  the  applicant’s  unsuitability  discharge  was  her  refusal  to  comply  with  a 
direct order in a search authorization issued by a military judge to provide a urine sample to be 
tested  for  marijuana.  She  stated  that  at  the  time  she  was  19  years  old  and  made  a  mistake  by 
refusing to provide a urine sample after her command obtained a search authorization directing 
her to do so.  She stated that she thought at the time that the search authorization was based on a 
questionable  health  and  welfare  inspection  of  her  apartment  (which  was  leased  to  the  Coast 
Guard)  and  that  she  vigorously  disputed  the  basis  for  the  search  authorization.   She  stated  that 

                                                 
1   Article 12.B.16.b. states that the purpose for unsuitability discharges is to free the Service of members considered 
unsuitable for further due one of nine reasons, including “apathy, defective attitudes, and inability to expend effort 
constructively.”    

2 The JMJ separation code means that a discharge was for unsuitability because of the member’s apathy, 
defective attitudes, or inability to expend effort effectively.   

 

 

her immaturity, frustration, and naiveté caused her to disobey the order, but she has learned from 
the  irrationality  and  impertinence  of  her  youth  and  believes  that  she  has  served  a  sufficient 
punishment.  She stated that the RE-4 reenlistment code is preventing her from enlisting in the 
National Guard.   

 
The applicant stated that she discovered the error on September 3, 2010.  She stated that 
it  is  in  the  interest  of  justice  to  consider  her  application  if  more  than  three  years  have  passed 
since  discovery  of  the  alleged  error  because  she  only  recently  learned  that  the  RE-4  code 
rendered her ineligible to enlist in the National Guard.   

 

Excerpts from the Applicant’s Military Record  
 
 
On June 4, 1992, the applicant’s commanding officer (CO) informed the applicant that he 
had  initiated  action  to  discharge  her  from  the  Coast  Guard  due  to  misconduct  because  she  had 
refused to provide a urine sample for drug testing.   
 
 
On  June  11,  1992,  the  applicant  by  her  signature  acknowledged  notification  of  the 
proposed discharge, waived her right to submit a statement, and did not object to the discharge.   
 
 
On this same date, June 11, 1992, the CO recommended that the Commandant discharge 
the  applicant  honorably  by  reason  of  misconduct  due  to  her  refusal  to  provide  a  urine  sample 
when  ordered  to  do  so  by  a  military  judge.    He  noted  that  she  was  ordered  to  provide  a  urine 
specimen on two separate occasions and refused each time.   
 
 
On August  14,  1992,  the  Commandant  ordered  the  applicant  to  be  discharged  from  the 
Coast Guard by reason of unsuitability under Article 12-B-16 of the Personnel Manual and that 
she should be assigned the JMJ separation code.  The applicant was discharged on September 15, 
1992.   
 

  

VIEWS OF THE COAST GUARD 

 
 
On March 3, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board deny relief as recommended by the Commander, 
Personnel Service Center (PSC).  PSC stated that the application should be denied because it is 
untimely.   
 
With regard to the merits, PSC noted that the applicant was punished at captain’s mast for 
 
refusing to obey a lawful order from a military judge to provide a urine sample to a  Coast Guard 
Investigative  Service  (CGIS)  agent.    PCS  stated  that  if  a  member  refuses  a  lawful  order  to 
provide a urine sample, that member is subject to disciplinary action under the Uniform Code of 
Military Justice (UCMJ), which could include processing for separation.   
 
 
PSC noted that although the applicant was discharged because of unsuitability pursuant to 
Article 12.B.16 of the personnel Manual, under  the current  practice she  would have received a 
discharge  due  to  misconduct  with  a  JKQ  separation  code  under  Article  12.b.18.b.3.  of  the 
Personnel Manual for violating a direct order.   

 

 

 
 
PSC  did  not  recommend  changing  the  reason  for  separation  from  unsuitability  to 
misconduct,  because  the  change  would  make  the  applicant’s  record  appear  worse.    PSC  also 
stated that the applicant’s “request to amend the information [on her DD 214] to an overall more 
favorable disposition . . .  is unsubstantiated and not permitted within applicable policy under the 
prevailing circumstances related to her cause for discharge.   
 

   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On March 28, 2011, the Board received the applicant’s response to the views of the Coast 
Guard.      She  stated  that  while  it  is  true  that  she  learned  that  she  could  not  reenter  the  service 
approximately 18 years after her discharge, she had asked recruiters and other military personnel 
about  her  situation  on  several  occasions  and  was  told  that  “they  didn’t  know  or  they  couldn’t 
help  me.”    She  stated  that  she  eventually  found  someone  to  help  her  appeal  her  discharge  and 
reenlistment  code.    She  stated  again  that  she  regretted  her  behavior  and  that  she  has  matured 
since her discharge.      
 

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 section 1552 of title 10 

of the United States Code.   

 

2.    The  application  was  not  timely.      To  be  timely,  an  application  for  correction  of  a 
 
military  record  must  be  submitted  within  three  years  after  the  applicant  discovered  the  alleged 
error or injustice.  See 33 CFR 52.22.   The applicant stated that she discovered the alleged error 
on  September  3,  2010.    However,  she  should  have  discovered  the  error  when  she  received  her 
DD 214 because it shows clearly that she was discharged by reason of unsuitability with an RE-4 
reenlistment code.  If she believed that the basis for her discharge was incorrect or if she did not 
understand  the  meaning  of  the  various  codes  on  the  DD  214,  she  should  have  raised  the  issue 
within three years of her discharge from the Coast Guard.  The applicant’s argument that that it is 
in  the  interest  of  justice  to  excuse  her  application’s  untimeliness  because  she  learned  only 
recently that an RE-4 is a bar to reenlistment is not persuasive. 
 
3.    Although  the  applicant’s  explanation  for  not  filing  her  application  sooner  is  not 
 
persuasive,  the  Board  must  still  perform  at  least  a  cursory  review  of  the  merits  to  determine 
whether it is the interest of justice to waive the statute of limitations.  In  Allen v. Card, 799 F. 
Supp.  158,  164  (D.D.C. 1992),  the  court  stated  that  in  assessing  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 stated 
that  "the  longer  the  delay  has  been  and  the  weaker  the  reasons  are  for  the  delay,  the  more 
compelling the merits would need to be to justify a full review."  Id. at 164, 165. 

 

 

 

4.  Based on a cursory  review of the merits, the applicant is not likely to prevail on her 
claim.    In this regard, the Board notes that the applicant  admitted that she refused  to  provide a 
urine  sample  in  accordance  with  a  search  authorization  issued  by  a  military  judge.    She  was 
punished  at  captain’s  mast  for  disobeying  a  direct  order  and  subsequently  discharged  due  to 
unsuitability  with  an  RE-4  reenlistment  code.    She  did  not  object  to  the  discharge  after  being 
provided  an  opportunity  to  do  so.    Nor  has  she  provided  any  evidence  in  her  application  that 
supports  a  finding  by  the  Board  that  the  basis  for  her  discharge  and  reenlistment  code  were  in 
error.”   

 

5.   Accordingly, it is not in the interest of justice to waive the untimeliness in this case 

and it should be denied because it is untimely.  
 

  
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 
 

 

 

The  application  of  former,  XXXXXXXXXXXXXXXXX,  for  correction  of  her  military 

record is denied. 

ORDER 

 

 

 
 Donna A. Lewis 

 

 

 
 
 Paul B. Oman 

 

 
 
 Darren S. Wall