DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2011-160 
 
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  application  upon 
receipt of the applicant’s completed application on April 26, 2011, and subsequently prepared the 
final decision 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  January  26,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATION 

 

 The  applicant  asked  the  Board  to  correct  his  record  by  removing  misconduct  as  the 
reason for his discharge from the Coast Guard Reserve in 1992 and by changing his RE-4 (not 
eligible  to  reenlist)  reenlistment  code  to  RE-1  (eligible  to  reenlist).      Earlier,  on  February  18, 
1990,  the  applicant  was  released  from  active  duty  and  transferred  to  the  Reserve  to  serve  the 
remainder of his eight-year military obligation.   At the time of his release from active duty, he 
received  a  DD  214  that  shows  he  was  honorably  released  from  active  duty  with  an  RE-1 
reenlistment code.   
 
 
The applicant stated that he is attempting to enlist in the Army Reserve and was shocked 
to learn that he had an RE-4 reenlistment code.  He stated that he learned of the alleged error on 
May 1, 2010.   He stated that over the past 18 years, he has used his DD 214 releasing him from 
active duty, but he never knew about documents in his record that showed his general discharge 
from the Coast Guard Reserve by reason of misconduct (shirking).   
 
 
The  applicant  stated  that  upon  leaving  active  duty  on  February  18,  1990,  he  began  a 
career  as  a  professional  fire  fighter,  and  that  his  civilian  work  schedule  conflicted  with  his 
Reserve drill obligations.  He stated that he received bad advice on how to handle the situation, 
and  he  was  under  the  assumption  that  he  had  fulfilled  his  obligation  to  the  U.S.  Coast  Guard 
during his active duty period.   He stated the following: 

 

 

 

At  the  time  all  of  this  was  happening  I  was  only  21  years  of  old,  working  two 
jobs, going through a divorce and a bankruptcy.   
 
I  never  knew  about  the  disciplinary  actions  or  the  general  discharge.    If  I  had  I 
would  have  never  let  that  happen.    My  signature  does  not  appear  on  any  of  the 
documents; nor the certified mail receipts . . .   
 
I worked in public safety for 10 years and have been a small business owner for 
the last 10  years.   I have never been in  trouble with the law and have no  record 
not  even  a  parking  ticket.    I  meet  all  requirements  for  the  U.S.   Army  and  have 
already passed my physical at M.E.P.S.  The only thing stopping me from being 
able to serve my country is this scar on my record from 20 years ago.      
 

BACKGROUND 

 

The applicant enlisted in the Coast Guard on March 21, 1988, and committed to an eight-
year  military  obligation.    Two  of  the  eight  years  were  to  be  served  on  active  duty  and  the 
remainder  was  to  be  served  in  the  Reserve.      On  March  21,  1988,  the  applicant  signed  a 
statement  of  understanding  with  respect  to  the  “2-year  Enlistment  Program  with  a  Selected 
Reserve  Commitment.”    The  applicant  acknowledged  on  that  document  that  after  his  release 
from  active duty, he would  be required to  serve a minimum  of 2  years in the Selected Reserve 
(SELRES) before transferring to another component of the Reserve.  He also acknowledged that 
satisfactory participation in the SELRES required that he complete at least 48 drills per year and 
at least 12 days of active duty training each anniversary year and that he  was obligated to keep 
his commanding officer informed of his address at all times.    
 

The  applicant  was  assigned  to  a  SELRES  unit.    On  June  23,  1991,  the  pay  officer  for 
Coast Guard Reserve Unit Panama City notified the applicant that  he was absent from his June 
15-16, 1991 drills without the absences having been excused.  The pay officer told the applicant 
the dates for the next scheduled drills and that “excused drills needed to be made up for a good 
year.  Failure to make these up will result in your being put in active pool.”  A Retirement Points 
Statement  shows  that  the  applicant  participated  in  4  of  48  scheduled  drills  from  February  19, 
1991 to February 18, 1992.   

 
On  September  29,  1991,  the  commanding  officer  (CO)  of  the  applicant’s  unit  sent  the 
applicant  a  letter  informing  him  that  his  participation  in  the  Reserve  was  unsatisfactory  due  to 
failure  to  attend  drills.    The  CO  told  the  applicant  that  he  could  be  separated  from  the  Coast 
Guard because of his unsatisfactory participation and that failure to contact the pay officer within 
10  days  from  the  date  of  the  letter  would  result  in  a  recommendation  for  separation  from  the 
Coast  Guard. 
the  words  “CERTIFIED  MAIL—RETURN  RECEIPT 
REQUESTED.”  Similar letters were sent to the applicant about his lack of drill participation on 
October 27, 1991, November 17, 1991, and December 15, 1991, and March 29, 1992. 

letter  had 

  The 

 
On  January  26,  1992,  the  CO  informed  the  applicant  that  he  was  recommending  his 
discharge from the Coast Guard Reserve by reason of shirking due to failure to attend drills and 

 

 

for failure to report to the pay officer as directed in earlier correspondence.   The CO gave the 
applicant  30  days  to  submit  a  statement  in  his  own  behalf  and  told  him  of  his  right  to  consult 
with legal counsel.  A copy of a certified mail return receipt with a February 5, 1992 date shows 
that someone at the applicant’s address with the applicant’s last name signed for a letter from the 
CO of his unit.   

 
On May 31, 1992, the CO recommended  to the Commandant, through the Eighth Coast 
District, that the applicant be discharged from the Coast Guard because of misconduct (shirking) 
with a general discharge.  The CO stated that notification had been sent by certified mail and that 
the certified mail receipt showed “receipt of the letter by the member.”   

 
On June 11, 1992, the Commander, Eight Coast Guard District, sent the applicant a notice 
that the commander was also recommending his discharge from the Coast Guard Reserve due to 
unsatisfactory participation and that the applicant had 30 days to submit a statement in his behalf.  
The applicant was also told that he could consult with legal counsel and that he could receive a 
general  discharge.    A  domestic  return  receipt  shows  that  someone  at  the  applicant’s  address 
signed for a certified letter from Commander Eight Coast Guard District on July 8, 1992.   

 
On September 3, 1992, the Commander, Eight Coast Guard District forwarded the CO’s 
request for the applicant’s discharge to the Commandant.  The Commander stated that he agreed 
with the recommendation for discharge.   

 
On September 18, 1992, the Commandant, authorized the applicant’s discharge from the 
Coast  Guard  Reserve  by  reason  of  misconduct  (Shirking).    He  also  directed  that  the  applicant 
receive a general discharge and an RE-4 reenlistment code. 

 
On  September  22,  1992,  the  Commander,  Eight  Coast  Guard  District  told  the  applicant 
by letter that he was discharged from the Coast Guard Reserve effective September 18, 1992 by 
reason of misconduct (shirking) and that his general discharge certificate was enclosed.     
 

VIEWS OF THE COAST GUARD 

 
 
On  July  18,  2011,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  issued  an 
advisory  opinion  recommending  that  the  Board  deny  relief  based  on  the  comments  from  the 
Commander, Personnel Service Center (PSC) that were attached to the advisory opinion.   
 
 
respect to the merits of the application, PSC stated that the following: 
 

PSC noted that the application was untimely and should be denied for that reason.  With 

There  is  nothing  in  the  applicant’s  record  to  substantiate  his  claim  that  he  could 
have remained oblivious of his responsibility to be an active SELRES member or 
his  obligation to  serve in  the Reserve component  until  March 20, 1996.  Rather, 
the  applicant’s  record  .  .  .  supports  that  he  was  given  ample  opportunity  and 
warnings  to  remedy  his  situation  before  discharge  would  be  authorized.   As  this 
did  not  occur,  it  is  therefore  compulsory  to  separate  a  non-participatory  junior 

 

 

member in accordance with policy set forth in [Article 4.B.2.a.3.] of the Reserve 
Policy Manual.   

 
 
The  Coast  Guard  stated  that  the  applicant’s  application  is  similar  to  that  in  Docket  No. 
2010-247  wherein  the  Board  denied  upgrading  that  applicant’s  general  discharge  due  to 
misconduct (shirking).  The Board also refused to excuse the untimeliness of the application in 
Docket No. 2010-247 noting that it lacked potential merit.  The Board stated that although that 
applicant’s  civilian  employment  as  a  police  officer  interfered  with  his  attendance  at  regular 
weekend  drills,  the  Coast  Guard  attempted  to  accommodate  him,  to  no  avail,  by  offering 
alternative drill  schedules.  The  Board also  stated  in  Docket  No. 2010-247  that that applicant’s 
Retirement Points Statements supported the Coast Guard’s decision to discharge him because of 
an established pattern of shirking.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
applicant for a response.  The Board did not receive a reply from the applicant.   

On  august  26,  2011,  the  Board  sent  a  copy  of  the  views  of  the  Coast  Guard  to  the 

FINDINGS AND CONCLUSIONS 

 

 

The Board makes the following findings and conclusions on the basis of the applicant's 

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
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  he  did  not  discover  the  error 
regarding  his  general  discharge  from  the  Coast  Guard  Reserve  until  May  1,  2010,  apparently 
when he attempted to enlist in the Army Reserve.  He argued that his signature does not appear 
on any of the documentation or the certified mail  return receipts.  However, the applicant does 
not deny that the address listed on the notification letters about his missed drills or the proposed 
discharge  was  correct;  nor  does  he  deny  that  he  received  the  letters  from  the  individuals  who 
signed for them.   Moreover, there is no evidence in the military record that any of the letters sent 
to  the  applicant  were  returned  to  the  Coast  Guard.    Accordingly,  the  Board  is  persuaded  that 
sufficient information was provided to the applicant to inform him that he was being processed 
for  separation  from  the  Coast  Guard  Reserve  with  a  general  discharge  due  to  misconduct 
(shirking).   Accordingly, the applicant should have filed his application with the Board within 
three  years  of  his  discharge  from  the  Coast  Guard  Reserve  on  September  18,  1992.    The 
application is untimely.     

 
3.  Although the application is  untimely, 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.  A cursory examination of the merits indicates that the applicant is not likely to prevail.  
Article 12.B.18.b.8. of the Personnel Manual permits the Coast Guard to discharge a member for 
a pattern of shirking.   The Coast  Guard warned  the applicant  several  times about  his  failure to 
satisfactorily  participate  in  drills,  but  he  did  not  heed  the  warnings.    In  addition,  Article 
12.B.18.a.  authorized  the  Commander,  Coast  Guard  Personnel  Command  to  direct  the  type  of 
discharge  warranted  by  the  particular  circumstances  of  a  given  case.    Here  the  applicant  was 
given  a  general  discharge  from  the  Reserve  because  he  failed  to  satisfactorily  participate  in 
scheduled drills or to make up missed drills.  A Retirement Points Statement shows that for the 
year  from  February  19,  1991  to  February  18,  1992,  the  applicant  participated  in  only  4  of  48 
scheduled drills.   It  would be inappropriate to  grant the applicant an honorable discharge when 
he failed to honor his obligation to the Coast Guard Reserve.  In addition, the RE-4 reenlistment 
code  was  appropriate  because  he  did  very  little,  if  anything,  to  earn  a  recommendation  for 
reenlistment in the Reserve.    
 
 
5.    Discharge  from  the  Reserve  is  not  documented  on  a  DD  214,  but  rather  with  a 
discharge certificate and notation in the service record.  The applicant’s general discharge from 
the Reserve and the RE-4 reenlistment are documented in his military record.   
 
 
and the application should be denied.   
 
 
 
 

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

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

 

ORDER 

 

The application of  former XXXXXXXXXXXXX XXXXXXXXX, for correction of his 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 
 Katia Cervoni 

 

 
 
 Lillian Cheng 

 

 
 Ashley A. Darbo 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

military record is denied.