DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2011-085 
 
XXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXX 
  

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  January  31,  2011,  and  subsequently  prepared  the  decision  with  the 
assistance of staff member D. Hale, 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 September 29, 2011, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

The  applicant,  who  was  discharged  from  the  Coast  Guard  in  1993  for  unsuitability, 
alleged that the  "circumstances regarding my court-martial  need to  be examined and corrected.  
This court-martial was fraudulent, and a mismanagement and waste of programs and operations."  
He  further  alleged  that  his  "honorable  discharge  is  questionable  due  to  circumstances 
surrounding  my  court  martial.”1      The  Board  interprets  the  applicant’s  request  as  one  for  the 
removal of his summary court-martial conviction from his record and for an upgrade of his under 
honorable conditions discharge (commonly referred to as a general discharge).  

 
   The  applicant  stated  that  he  discovered  the  alleged  error  in  “2005-2010.”    Explaining 
his delay in filing his application, the applicant stated that "there is evidence of existing medical 
condition which is supported by medical records."  In support of his application, he submitted a 
copy of his DD Form 214 and a Medical Verification Form dated May 30, 2006, indicating that 
he  has  work  restrictions  because  of  a  back  condition.  He  also  submitted  Medical 
Release/Physician's Statements dated December 29, 2007, July 18, 2008, October 16, 2009, and 
January 18, 2010, indicating continued work restrictions related to his back condition.     

 
 

                                                 
1  The  applicant  did  not  receive  an  honorable  discharge.    The  military  record  shows  that  he  received  an  under 
honorable conditions discharge.   

 

 

 

SUMMARY OF THE RECORD 

 

 
 
The  applicant  enlisted  in  the  Coast  Guard  on  July  19,  1993,  and  subsequently  began 
recruit  training  at  Cape  May.  According  to  his  military  record  on  August  6,  1993,  he  was 
convicted  at  a  summary  court-martial  of  violating  Article  115  (malingering)  of  the  Uniform 
Code of Military Justice (UCMJ).  The record indicates that part of his sentence included 30 days 
of confinement.   

 
 On August 9, 1993, the applicant arrived at a brig to serve his confinement.  On August 
11, 1993, brig personnel referred the applicant to the clinic for an evaluation because his medical 
record  indicated  that  he  had  engaged  in  suicidal  ideation  and  in  at  least  one  failed  suicide 
attempt.  On August 16, 1993, the applicant was evaluated by a Navy physician, who explained 
the applicant’s history as follows: 
 

He  was  twice  evaluated  by  psychiatry  at  Cape  May.    On  each  occasion,  he  was 
returned  to  duty  (though  once  admitted  for  a  short  period  for  “acute  emotion 
decompensation”) with the [diagnosis] of adjustment disorder.  [However, one of 
these  evaluations  indicted  that  he  might  be  malingering].    His  medical  record 
indicates  he  experienced  bouts  of  nausea,  vomiting  and  other  somatic 
manifestations of anxiety. 
 
At  one  point,  while  at  Cape  May,  he  suddenly  experienced  a  thought  of  killing 
himself.  He apparently gestured suicide resulting in a very shallow laceration of 
one of his wrists.  However, he immediately stopped himself thinking that he had 
a  wife,  that  killing  himself  was  wrong  and  that  he  had  too  much  to  return  to  at 
home.    [In  each  evaluation,  the  applicant  stated  that  he  wanted  out  of  the  Coast 
Guard]. 

 

On August 19, 1993, the applicant was once again evaluated by the Navy physician, who 

The  physician  diagnosed  the  applicant  as  having  an  adjustment  disorder  with  mixed 
emotional features and as having “prominent Dependent, avoidant and Immature features.”  The 
doctor stated that the applicant was "fit for duty, but profoundly unsuitable for such.  I give my 
strongest  recommendation  that  he  be  administratively  separated  in  the  most  expedient  fashion 
possible, after release from the brig." 
 
 
once again recommended that the applicant be separated from the Coast Guard. 
 
 
On  August  25,  1993,  the  Coast  Guard  notified  the  applicant  that  he  was  going  to  be 
discharged  for  unsuitability  because  he  had  intentionally  injured  himself  to  avoid  training,  he 
attempted to  manipulate the system by making false suicidal  gestures;  and he was convicted at 
summary  court-martial  for  malingering.        In  addition  the  applicant’s  command  also  informed 
him that an RE board2 was convened and unanimously found that it was in the best interest of the 
Service to discharge the applicant with a general discharge under honorable conditions and with 

                                                 
2 There is no explanation for the term RE board.  This Board assumes that it means a retention board was convened.   

 

 

an RE-4 reenlistment code.   The applicant was advised of his right to make a statement and of 
his right to consult an attorney.  He signed the document, acknowledging that he did not desire to 
make  a  statement,  did  not  desire  to  meet  with  the  Commanding  Officer,  and  did  not  desire  to 
speak with an attorney. 
 
 
On  August  27,  1993,  the  applicant  was  discharged  from  the  Coast  Guard  pursuant  to 
Article  12.B.16.  of  the  Coast  Guard  Personnel  Manual.    He  received  a  discharge  “under 
honorable conditions,” because of unsuitability, with a JMD3 separation code and an RE-4 (not 
eligible to reenlist) reenlistment code.  He had served in the Coast Guard for 23 days. 
 
 
On August 27, 1993, an entry entitled “SUBSTITUTION PHYSICAL EXAMINATION” 
was placed in  the applicant’s medical record.   It noted the purpose of the examination was the 
applicant’s  discharge  and  that  he  was  fit  for  duty.    On  the  same  page,  the  applicant  signed  a 
statement that was witnessed by a health services technician, which  read  “I deny  any injury  or 
illness at this present time.”     
 

VIEWS OF THE COAST GUARD 

 
On  May  2,  2011,  the  Judge  Advocate  General  (JAG)  submitted  an  advisory  opinion  in 
 
which he recommended that the Board deny relief.  In so doing, he adopted the facts and analysis 
provided  in  an  enclosed  memorandum  prepared  by  the  Coast  Guard  Personnel  Service  Center 
(PSC).   
 
 
The  PSC  stated  that  the  application  is  not  timely  and  should  be  denied  due  to 
untimeliness.  PSC noted that the only mention the applicant makes regarding the untimeliness of 
his  application  is  that  "there  is  evidence  of  existing  medical  condition  which  is  supported  by 
medical records." 
 
 
PSC  stated  that  in  addition  to  untimeliness,  the  applicant's  request  should  be  denied 
because  he  was  found  guilty  of  malingering  at  summary  court-martial  and  the  circumstances 
leading to the charge are "completely substantiated and well documented”. 
 
 
 
 PSC  noted  in  his  memorandum,  however,  that  under  current  Coast  Guard  policy,  the 
applicant  would  have  received  a  separation  code  denoted  by  “FY”  to  signify  an  adjustment 
disorder as the reason for discharge.  PSC recommended that the applicant's DD 214 be corrected 
to  show  a  separation  code  of  GFY  (involuntary  discharge  due  an  adjustment  disorder  not 
amounting to a physical disability) and the narrative reason for separation should be “adjustment 
disorder.” 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On May 6, 2011, the Chair sent a copy of the views of the Coast Guard to the applicant 

and invited him to respond within 30 days.  No response was received. 

                                                 
3  According  to  COMDTINST  1900.4C  (March  12,  1990),  the  JMD  indicates  that  the  applicant  was  discharged 
because of unsuitability due to inaptitude.   

 

 

 

 

APPLICABLE REGULATIONS 

Article 12.B.16.b. of the Personnel Manual lists inaptitude as a basis for an unsuitability 
discharge.    Under  Article  12.B.16.d.,  prior  to  recommending  a  member  for  an  unsuitability 
discharge,  the  CO  is  required  to  notify  the  member  of  the  proposed  discharge;  afford  him  the 
opportunity to submit a statement on his own behalf; and, if a General discharge is contemplated, 
allow him to consult with an attorney.  (In Change 39 to the Personnel Manual (2005) adjustment 
disorder was added to this provision as a basis for an unsuitability discharge.)   

 
Article  12.B.16.e.  of  the  Personnel  Manual  permits  commanding  officers  of  training  
centers to discharge enlisted members because of unsuitability solely due to inaptitude without a 
medical  board  if  they  had  less  than  4  four  months’  active  service  and  were  “deemed  unfit  for 
further retention.”  Subsection 2 of this provision provides the following guidance for a general 
discharge: 
 

Issuing a general discharge is warranted if there is evidence of misbehavior, bad 
faith, or failure to make a proportionate effort having due regard for his or her rate 
and  capabilities.    Commanding  officers  shall  summarize  the  basis  on  which 
awarding  a  general  discharge  on  an  administrative  remarks,  [page  7]  in  the 
member’s  PDR.    The  entry  should  reflect  a  record  of  disciplinary  infractions  in 
training, culpable failure to conform to minimum standards for recruit or Reserve 
training, or poor attitude.  

 
 
ALCOAST 252/09 issued on April 29, 2009, states that the Department  of Defense has 
created  new  separation  codes  (the  FY  series)  to  address  the  situation  in  which  a  member  is 
unsuitable  for  military  service  because  of  a  diagnosed  adjustment  disorder  that  does  not 
constitute a physical disability but that prevents the member from adapting to military life.  The 
ALCOAST  directed  that  the  Coast  Guard  began  using  the  FY  SPD  codes  for  members 
discharged because of adjustment disorders.  For enlisted personnel, the re-entry code assigned 
can be either RE-3G or RE-4.  CG PSC (epm-1) will review the separation packages and make 
the determination for which re-entry code should be applied. 
 

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 over this matter under 10 U.S.C. § 1552(a).   

 

2.  The  application  was  not  timely.  Under  33  C.F.R.  §  52.22,  an  application  to  the  Board 
must be filed within three years after the applicant discovers the alleged error or injustice.  The 
applicant stated that he discovered the alleged error between 2005 and 2010.  However, he was 
aware that he had received a discharge under honorable conditions when he received and signed 
his DD 214 on August 27, 1993, and he was also aware at that time that he had been convicted at 
a summary court-martial.   Therefore, any allegations of error with regard to his summary court-
martial  or  his  discharge  should  have  been  submitted  to  the  Board  within  three  years  after  his 

 

 

1993  discharge.      The  post-discharge  medical  documents  show  that  the  applicant  has  a  back 
condition, but they do not explain why he could not have filed his application sooner.   
 
     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.”  Id. at 164, 165.    

 
4.  Based upon a cursory review of the merits, the Board finds that the applicant is not likely 
to prevail. In this regard, the applicant alleged that his court-martial was fraudulent and abusive, 
but  he  provided  no  evidence  to  support  his  contention.  More  importantly,  the  Board  does  not 
have authority to remove a court-martial from a military record.  See 10 U.S.C. § 1552(f).   The 
applicant  also  failed  to  present  any  evidence  to  prove  that  his  under  honorable  conditions 
discharge is erroneous.  In addition, in discharging the applicant, his command informed him of 
the reasons for his discharge and provided him with an opportunity to submit a statement, consult 
with the CO, and consult with an attorney.  The applicant signed a statement waiving his rights 
in this regard. The applicant’s allegations, without supporting evidence, are insufficient to prove 
an  error  or  injustice  with  respect  to  his  summary  court-martial  conviction  or  his  discharge.  
Therefore, it is not in the interest of justice to waive the untimeliness with regard to these issues.  

 
5.  Although PSC recommended changing the applicant’s narrative reason for discharge and 
SPD  code  to  adjustment  disorder  to  reflect  current  policy,  the  Board  will  not  direct  this 
correction for the reasons that follow. The narrative reason for separation and the separation code 
assigned to the applicant on his DD 214 indicate that he was discharge by reason of unsuitability 
due to inaptitude.  Adjustment disorder as a basis for separation was not added to the Personnel 
Manual  until  2005  and  to  the  Separation  Program  Designator  (SPD)  Handbook  in  2009.    
Although the Navy physician who evaluated the applicant in 1993 diagnosed the applicant with 
an  adjustment  disorder  and  recommended  his  separation  from  the  Coast  Guard,  the  applicant’s 
command  did  not  list  the  psychological  evaluation  as  a  basis  or  reason  for  their  decision  to 
separate the applicant.  Instead, the command focused on the applicant’s summary court-martial 
conviction  for  malingering  and  his  propensity  to  manipulate  the  system  by  engaging  in  false 
suicidal attempts and gestures.  Therefore, the Board is persuaded that the command’s decision 
to discharge him due to inaptitude was a proper basis for separation.   

 
6.  Additionally, there is the question of whether changing the narrative reason for separation 
from  unsuitability,  with  a  JMB  (inaptitude)  separation  code  to  “adjustment  disorder”  as  the 
narrative  reason  for  separation  with  the  corresponding  GFY  (involuntary  discharge  due  to 
adjustment disorder) separation code, as suggested by PSC,  would make the applicant’s record 
appear worse.  In this regard, inaptitude is defined as “unfit due to lack of general adaptability, 
want  or  readiness  of  skill,  clumsiness,  or  inability  to  learn.”    Article  12.B.16.  of  the  Personnel 
Manual.”    Change  39  to  the  Personnel  Manual  issued  in  2005  specifically  added  adjustment 
disorder as a basis for an unsuitability discharge and defined it, along with apathy and defective 
attitudes as “the inability to expend effort constructively, or other observable defect for which a 

 

 

separation  designator  code  (SPD  code)  exists  that  renders  a  member  unsuitable  for  further 
military  service.”  Medically,  an  adjustment  disorder  is  a  psychological  response  to  an 
identifiable stressor that results in the development of emotional or behavioral symptoms, which 
may  be  temporary  and  disappear  when  the  stressors  disappear.    Diagnostic  and  Statistical 
Manual  of  Mental  Disorders,  Fourth  Edition  (2000)  (p.  679).    The  Board  believes  that  a 
discharge  by  reason  of  “adjustment  disorder”  could  be  considered  more  prejudicial  than  a 
discharge by reason of unsuitability with a separation code indicating inaptitude.  In addition, the 
applicant did not  ask for a change in his separation code; nor did he endorse such a change by 
responding  to  the  advisory  opinion.    Therefore,  the  Board  will  not  direct  a  change  to  the 
applicant’s narrative reason for separation or his separation code.  However, the Board will grant 
further consideration on the issue of changing the narrative reason and separation code to reflect 
a  discharge  because  of  an  adjustment  disorder,  if  the  applicant  requests  such  further 
consideration within 180 days from the date of this decision.   

 
7.  Accordingly, the application should be denied because it was untimely with regard to the 
applicant’s  allegations  about  his  summary  court-martial  and  his  under  honorable  conditions 
discharge.   

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 

 

 

 

ORDER 

 

The application of XXXXXXXXXXXXX, USCG, for correction of his military record is 
denied.    However,  the  Board  shall  grant  further  consideration  on  the  issue  of  changing  the 
narrative  reason  and  separation  code  on  his  DD  214  to  reflect  a  discharge  by  reason  of 
adjustment disorder if he submits a request for such further consideration within 180 days from 
the date of this decision.  
 

  

 
 James E. McLeod 

 

 

 
 Vicki J. Ray 

 

 

 
 Julia Doig Wilcox