DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-093 
 
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 March 9, 2012, 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  December  7,  2012,  is  approved  and  signed  by  the  three  duly 

BACKGROUND 

 
 
On October 22, 1998, the Board denied a request from the applicant in BCMR No. 1997-
189  to  correct  his  military  record  to  show  that  he  was  retired  instead  of  discharged.   The  final 
decision in BCMR No. 1997-189 described the applicant’s situation as follows: 
 

On  May  23,  1992,  the  applicant  was  convicted  by  a  general  court-martial  of  13 
violations under the . . .  the Uniform Code of Military Justice (UCMJ). . . .  The 
court-martial  sentenced  him  for  his  crimes  to  six  months  confinement  at  hard 
labor, to a reduction to pay grade E-1, and to a bad conduct discharge (BCD).  On 
September 21, 1992, the convening authority approved the sentence.  On August 
9, 1993, the applicant’s conviction was upheld on every charge and specification 
by the Coast Guard Court of Criminal Appeals (CGCCA) . . .  [but] the CGCCA 
ordered  a  rehearing  on  the  sentence    .  .  .  on  the  ground  that  one  of  the  three 
attorneys  the  Coast  Guard  had  provided  to  represent  the  applicant  at  the  court-
martial was assigned to duty aboard a ship during the time of the sentencing.   
 
On  December  19,  1995,  the  applicant  signed  a  request  of  an  “other  than 
honorable”  (OTH)  discharge.   That  request  stated  that  “I  understand  that  such  a 
discharge  may  deprive  me  of  virtually  all  veterans’  benefits  based  upon  my 
current period of active duty . . .  This request is voluntarily submitted free from 
any duress or promise of any kind.” 

 

 

 
On December 29, 1995, the Officer Exercising General Court-Martial Jurisdiction 
(OECGMJ)        .  .  .  canceled  the  referral  for  a  rehearing  on  resentencing  on  the 
ground that resentencing had been delayed for over two years, a delay that made 
conducting  a  rehearing  impracticable.   The  OECGMJ  granted  a  sentence  of  “no 
punishment” and the applicant was discharged on December 31, 1995 under other 
than honorable conditions.    

The Board found, in BCMR No. 1997-189, that the Coast Guard did not commit an error 

 
 
or injustice by discharging the applicant without retirement on December 31, 1995. 
 

APPLICANT’S CURRENT REQUEST AND ALLEGATIONS 

 
 
 In  his  current  application,  the  applicant  asked  the  Board  to  correct  his  record  to  show 
that  he  has  an  honorable  discharge  instead  of  a  discharge  under  other  than  honorable  (OTH) 
conditions.    He  alleged  that  he  was  eligible  for  an  honorable  discharge  six  months  after  being 
discharged with an OTH in 1994, but he never completed the paper work.   The applicant did not 
list a date on which he discovered the alleged error, but stated that it is in the interest to waive the 
untimeliness  of  his  application  because  he  was  eligible  for  an  honorable  discharge  six  months 
after being discharged with an OTH.   
 

VIEWS OF THE COAST GUARD 

 
 
On  July  27,  2012,  the  Judge Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 
advisory opinion recommending that the Board deny relief.  The JAG noted that the application 
was untimely and that the applicant failed to show why it is in the interest of justice to excuse the 
delay.    In  this  regard,  the  JAG  argued  that  the  application  was  submitted  14  years  beyond  the 
statute of limitations, that the applicant did not state a reason for the delay, and that the applicant 
was not likely to prevail on the merits because he submitted no evidence to support his claim that 
he was eligible for an honorable discharge.   
 

The JAG attached comments from the Commander, Personnel Service Center (PSC) and 
asked  that  they  be  accepted  as  a  part  of  the  advisory  opinion.        In  addition  to  noting  the 
application’s untimeliness, PSC stated that the applicant did not provide any evidence supporting 
his argument.  PSC stated that Coast Guard policy does not contain any provisions which would 
allow  upgrading  a  member’s  character  of  discharge  without  the  demonstration  of  an  error  or 
injustice.  PSC stated that the Coast Guard is presumptively correct and the applicant has failed 
to substantiate any error or injustice with regard to his discharge.   
  

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  August  21,  2012,  the  Board  received  the  applicant’s  response  to  the  views  of  the 
Coast Guard.  The applicant disagreed that his application should be denied due to untimeliness 
because he was diagnosed with and suffered from the symptoms of post-traumatic stress disorder 
(PTSD).    He  also  stated  that  at  the  time  he  signed  the  request  of  an  OTH,  he  was  under  the 

 

 

influence  of  narcotic  drugs  prescribed  to  him  for  injuries  sustained  in  a  motor  accident.1    He 
argued that it is in the interest of justice to  waive the untimeliness because he served on active 
duty  for  21  years,  7  months,  and  10  days  and  his  service  was  excellent.    He  submitted  several 
commendatory  administrative  remarks  pages  (page  7s)  of  his  service.    He  stated  that  since  his 
discharge  he  has  continued  with  physical  therapy  and  treatment  for  PTSD,  but  he  is  no  longer 
addicted to prescription drugs.  He stated that he has been married for 14 years and has not been 
in any trouble with the law.   
 
 
The  applicant  submitted  an  undated  medical  report  that  shows  he  was  diagnosed  with 
“right  sciatic nerve injury  partial with  reflex  sympathetic dystrophy.”  The report indicates that 
the  applicant  was  involved  in  a  car  accident  in  October  1993  and  subsequently  underwent  a 
fusion  of  the  right  SI  joint.  In  January  1995,  he  underwent  surgery  for  removal  of  the  screws.  
According  to  the  medical  report,  the  doctor  recommended  a  course  of  treatment  that  included 
supervised  chemicals  Sympathectomy  with  Phenoxybenzamine.    The  doctor  stated  “over  the 
long haul [the applicant’s] prognosis is good but will take many years.”   
 
 
The applicant submitted a document entitled “The date 2 July 1990, the place U.S. Coast 
Guard  Training  Center  Cap  May  New  Jersey.”    The  documents  appears  to  be  the  written 
statement of the applicant pertaining to the death of a sea cadet on which he participated in the 
unsuccessful  attempt  to  save  the  sea  cadet’s  life.    The  last  entry  on  the  three-page  document 
states, “I am presently being evaluated by Dr. [S] to [rule out] PTSD.”   
 
 
The  applicant  submitted  a  letter  from  his  detailed  appellate  defense  counsel  explaining 
that  a  decision  on  whether  the  applicant  would  be  eligible  for  veterans’  benefits  was  up  to  the 
Department  of Veterans Affairs.   The  letter  explained  that  avoiding  a  BCD  and  the  applicant’s 
other prior honorable discharges would improve his chances of obtaining veterans’ benefits.    

 

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 should have discovered the alleged error  as 
early as December 31, 1995, the date of his OTH discharge and no later than October 22, 1998, 
the  date  the  Board  rendered  a  final  decision  in  BCMR  No.  1997-189.    In  the  findings  and 
conclusions  of  that  case,  the  Board  notes  the  fact  that  the  applicant  had  received  an  OTH  in 
1995.  
 

                                                 
1  BCMR No. 2012-093 states that the applicant was involved in a car accident while in an appellate leave 
status.   

 

 

3.  The applicant’s argument that the untimeliness should be excused because he suffers 
 
from  PTSD  and  that  at  the  time  he  requested  the  OTH  discharge  he  was  under  prescribed 
narcotics for treatment of injuries he suffered in  motor vehicle accident is not supported by the 
record.  The medical evidence offered by the applicant states that PTSD should be ruled out and 
not  that he actually  had  or has  PTSD.   In  addition  there is  no  corroboration for the  applicant’s 
claim  that  he  was  addicted  to  and  under  the  influence  of  prescription  drugs  when  he  requested 
the OTH.  The Board notes that less than three years after his discharge, the applicant was fully 
capable of filing a claim with the BCMR in 1997 to challenge the fact that he was not receiving 
retired pay. If he was capable of challenging the fact that he was not retired, he was also capable 
of  challenging  the  fact  that  he  had  received  an  OTH.  Therefore,  the  applicant’s  arguments  for 
excusing his untimeliness are not persuasive to the Board.   
 
 
4.  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. 

 
 
5.  A cursory examination of the merits indicates that the applicant is not likely to prevail 
because he has presented no regulation and the Board is aware of none that states that  an OTH 
discharge  will  be  upgraded  after  a  six-month  period.    Nor  has  the  applicant  presented  any 
evidence  that  anyone  in  authority  told  him  that  his  OTH  would  be  upgraded  after  a  six-month 
period.    While  the  applicant’s  record  of  trial  and  the  documentation  of  the  OTH  request  and 
approval are not in the military record, the Board presumes that the OTH request was submitted 
and approved in accordance with the Personnel Manual. Under Article 12.B.21 of the Personnel 
Manual  then  in  effect,  an  enlisted  member  could  request  an  OTH  in  lieu  of  “UCMJ  actions  if 
punishment for alleged misconduct  could  result in  a punitive discharge at  any time after court-
martial  charges  have  been  preferred  against  him  or  her.”    This  section  further  requires  that  a 
member  who  indicates  a  desire  to  submit  a  request  for  an  OTH  discharge  for  the  good  of  the 
Service  will  be  assigned  a  lawyer  counsel.    The  applicant  has  not  produced  any  evidence  to 
suggest that the Coast Guard failed to comply with the Personnel Manual in granting his request 
for an OTH.   
 
6.  The applicant submitted documents showing that he performed some excellent service 
 
while in  the Coast  Guard.  However,  Article 12.B.2.f.3.  allows the Coast Guard to  discharge  a 
member  with  an  OTH  for  misconduct  or  in  lieu  of  trial  by  court-martial  for  the  good  of  the 
Service.  According to the final decision in BCMR No. 1997-189, the applicant was discharged 
with  an  OTH  at  his  request  to  avoid  a  possible  BCD  at  a  resentencing  for  his  court-martial 
convictions.     
 
 
justice to excuse the untimeliness.   
 

7.  The application should be denied because it is untimely and it is not in the interest of 

  

 

 

 

 

The  application  of  XXXXXXXXXXXXXXXXXXXXX,  for  correction  of  his  military 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Donna M. Bivona  

 

 

 
 Andrew D. Cannady 

 

 

 
 Francis H. Esposito 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

record is denied.