DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-020 
 
Xxxxxxxxxxxxxx 
xxxxxxxxxxxxxx 

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 November 1, 2011, 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  June  21,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
The applicant received a discharge “under other than honorable conditions,” also known 
as an OTH discharge, from the Coast Guard on March 1, 1996, due to involvement with illegal 
drugs.    He  asked  the  Board  to  upgrade  his  discharge  to  “general  under  honorable  conditions.”  
He stated that the OTH discharge was not erroneous or unjust but that he needs a better discharge 
to get a job with the federal government, so he is asking for forgiveness.  
 

SUMMARY OF THE RECORD 

 

 
The applicant enlisted in the Coast Guard on April 25, 1995, when he was 19 years old.  
On  the  same  day,  he  acknowledged  by  his  signature  that  he  had  been  advised  that  the  use  or 
possession of illegal drugs is a serious offense, that he would be subject to urinalysis, and that if 
his urine tested positive for illegal drugs, he would be “subject to an immediate general discharge 
by  reason  of  misconduct.”    During  recruit  training,  the  applicant  signed  another  acknowledge-
ment of having received a full explanation of the Coast Guard’s drug and alcohol policies. 
 
 
 
Upon graduating from recruit training in late June 1995, the applicant was assigned to the 
cutter SUNDEW, a 180’ buoy tender plying the Great Lakes.  On March 1, 1996, at age 20, he 
received  an  OTH  discharge  after  just  10  months  and  7  days  of  active  service.    The  only 
documentation of his separation in his military record is his DD 214, which he signed.  The DD 
214 shows that he received the OTH discharge for “misconduct” pursuant to Article 12-B-18 of 

 

 

the Personnel Manual with a JKK separation code, which denotes an involuntary separation due 
to involvement with drugs.  The DD 214 shows his rank upon discharge as seaman recruit, pay 
grade E-1, and his effective date of rank as January 5, 1996.   

 
A  search  of  electronic  court  records  reveals  that  in  September  2006,  the  applicant  was 
arrested  and  charged  with  disorderly  conduct,  intentional  possession  of  a  controlled  substance, 
and  operating  a  vehicle  without  a  valid  inspection.    However,  the  charge  of  possession  of  a 
controlled substance was dismissed.  
 

VIEWS OF THE COAST GUARD 

 

On February 26, 2012, the Judge Advocate General (JAG) of the Coast Guard submitted 
an  advisory  opinion  recommending  that  the  Board  deny  relief  in  this  case.    He  stated  that  the 
application  should  be  denied  because  it  is  untimely  and  lacks  merit  because  the  Coast  Guard 
committed no error or injustice in discharging the applicant. 

 
Regarding the applicant’s request for forgiveness, the JAG, citing the Board’s decision in 
BCMR Docket No. 2007-095, argued that past BCMR decisions “dictate that in considering the 
character  of  a  discharge,  the  Board  should  not  upgrade  a  decision  based  on  post-discharge 
conduct alone, but may ‘take into account changes in the community mores, civilian as well as 
military, since the time the discharge was rendered, and upgrade a discharge if it is judged to be 
unduly  severe  in  light  of  contemporary  standards.”    The  JAG  stated  that  Coast  Guard  policy 
continues to “mandate[] separation for drug use with a characterization no higher than a general 
discharge.  Therefore, the applicant’s discharge under other than honorable conditions is consis-
tent with CG policy and not unduly severe.” 

 
The  JAG  concluded  that  the  application  should  be  denied  because  it  is  untimely  and 
because the applicant  “has not  provided any documentation in  support of his  untimely applica-
tion or proper justification to warrant a review.” 

 
The JAG also adopted the findings and analysis provided in a memorandum on the case 
prepared  by  the  Personnel  Service  Center  (PSC).    PSC  noted  that  an  HKK  separation  code 
denotes “illegal drug involvement when supported by evidence not attributed to urinalysis.”  PSC 
noted  that  the  applicant’s  DD  214  is  presumptively  correct,  that  he  did  not  submit  anything  to 
substantiate an error, and that he did not claim that his discharge was erroneous or unjust.  PSC 
also argued that under the doctrine of laches, the applicant’s long delay in requesting the correc-
tion  “has  prejudiced  the  Coast  Guard’s  ability  to  produce  more  evidence  to  show  that  the 
disputed  military  record  is  correct  and  just.”    See  Lebrun  v.  England,  212  F.  Supp.  2d  5,  13 
(D.D.C. 2002).  PSC stated that the applicant’s DD 214 should remain unchanged “until it can be 
definitively shown that the Coast Guard erred or did not act in good faith.”  

 

 

 

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On February 23, 2012, the Chair of the BCMR sent the applicant a copy of the views of 

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

APPLICABLE LAW 

 

Article  12-B-18.a.  of  the  Personnel  Manual  in  effect  in  1996  states  that  “[a]n  enlisted 
member may be separated by reason of misconduct with a discharge under other than honorable 
conditions,  general  discharge,  or  honorable  discharge  as  warranted  by  the  particular 
circumstances  of  a  given  case.”    Commander,  Military  Personnel  Command  was  authorized  to 
decide what type of discharge the member would receive. 

 
Article 12-B-18.b.(4) states that any enlisted member “involved in a drug incident” could 

be discharged for misconduct with “no higher than a general discharge.” 

 
Article  12-B-18.d.  states  that  “[a]ll  cases  where  a  discharge  under  other  than  honorable 
conditions by reason of misconduct is contemplated shall be processed as prescribed by Article 
12-B-32.” 
 
 
Article 12-B-32 provides that no member may receive an OTH discharge unless they are 
afforded the right to appear before an Administrative Discharge Board, represented by counsel, 
unless  the  member  is  “beyond  military  control  by  reason  of  prolonged  unauthorized  absence, 
requests discharge for the good of the Service, or the member waives the right to board action in 
writing.” 
 

These regulations remain essentially the same under Article 1.B.17. of the current Coast 

Guard Separations Manual.  

 
Under  the  Separation  Program  Designator  (SPD)  Handbook,  an  HKK  separation  code 
denotes an involuntary discharge for misconduct under Article 12.B.18. of the Personnel Manual 
“in  lieu  of  further  processing  or  convening  of  a  board  (board  waiver)  when  member  who 
commits drug abuse, which is the illegal, wrongful or improper use, possession, sale, transfer or 
introduction on a military installation of any narcotic substance, intoxicating inhaled substance, 
marijuana, or controlled substance, as established by 21 USC 812, when supported by evidence 
not attributed to urinalyses … .” 

FINDINGS AND CONCLUSIONS 

 

 
 
military record and submissions, the Coast Guard’s submissions, and applicable law: 

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 10 U.S.C. § 1552. 
The Board finds that the applicant has exhausted his administrative remedies, as required by 33 
C.F.R. § 52.13(b), because there is no other currently available forum or procedure provided by 
the Coast Guard for correcting the alleged error or injustice. 

 

 

 

2. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the  applicant 
discovers, or reasonably should have discovered, the alleged error in his record.1  The applicant 
was  discharged  in  1996,  signed  his  DD  214,  and  thus  knew  what  type  of  discharge  he  had 
received at that time.  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.”2  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.”3   

 
4. 

The applicant did not explain his delay in seeking an upgrade of his discharge, but 
alleged,  in  essence,  that  it  is  in  the  interest  of  justice  for  the  Board  to  waive  the  statute  of 
limitations and upgrade his discharge to help him gain employment with the federal government.  
The Board does not find this argument compelling because it does not explain why he could not 
have applied for the correction of his DD 214 much sooner. 

 
5. 

A  cursory  review  of  the  merits  of  this  case  indicates  that  the  applicant  has  not 
claimed that his OTH discharge is erroneous or unjust but asks the Board to forgive his offense 
and upgrade his discharge.  However, the record contains no grounds for the Board to forgive the 
offense other than an allegation that he would like a job with the federal government but cannot 
get  one because of his  OTH discharge.  The  Board has authority to  upgrade discharges even if 
they  were  properly  awarded  under  regulations  in  effect  at  the  time,  but  the  delegate  of  the 
Secretary has informed the Board that it “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.”4    Under 
Article 1.B.17. of the Separations Manual in effect today, members involved in a drug incident 
may  receive an OTH discharge.  Without more substantial evidence in the record, the Board is 
not persuaded that the applicant’s OTH discharge for misconduct is disproportionately severe in 
light of current standards or that it constitutes an injustice that should be corrected at this time. 

 
6. 

Based on the record before it, the Board finds that the applicant’s request for cor-
rection  of  his  OTH  discharge,  which  is  presumptively  correct,5  cannot  prevail  on  the  merits.  
Accordingly,  the  Board  will  not  excuse  the  application’s  untimeliness  or  waive  the  statute  of 
limitations.  The applicant’s request should be denied. 

 
 

                                                 
1 10 U.S.C. § 1552; 33 C.F.R. § 52.22. 
2 Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992). 
3 Id. at 164, 165; see also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   
4 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military Records (July 7, 
1976). 
5 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 
Government officials have carried out their duties “correctly, lawfully, and in good faith.”). 

 

 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction 

of his military record is denied.   
 

ORDER 

 

 

 
 Philip B. Busch 

 

 

 
 Lynda K. Pilgrim 

 

 

 
 Vicki J. Ray